/% • 









^^•^^ 



• .^^ 



















O"^ ^l*^''/^?' 










I* . » * 















^". ^o 











^^% \^|^/ .^'^''^^^ ">.^^>K/ >^ -^^ 







O. A*^' o"/.**?*^ 



'i*» r\> . r iilirfir 7 •• ^ ^ 



^^. x-*-^ '" 



^<^ 

,/ ■% 








■» o 






















U^" ^* 



,^^, 










"0. ^*vra2'^* *os A** ♦^ 
^ *«aK5^. ^^ A' *ji 












/ .'^^^I^ U^.4' :^: %„./ .-iisSe^-. V.<.* 
















:-\ co\c;^.*°o /.i^.\ /.c^^^i.^^o ,^ 




..0' .0' ^ 







IMPORTANT COMESPONDENCE. 



FRIENDLY DISCUSSION OF PARTY POLITICS IN 18601. 



Letters of Hon. ROSWELL MARSH, of Steubenville, Ohio, 
and Hon. CHAS. REEMEUN, of Cincinnati. 



[Prom The Crisis of March 8, 1865.] 



l^ 



In pablishing the subjoined letters and 
some ten or twelve more hereafter, it may 
be proper to explain how we came by them, 
and also how the discussion contained 
therein arose. We heard accidentally of 
the existence of the correspondence and 
applied to one of the writers (Mr. Reeme- 
lin) for it, with a view to publish it. He 
forwarded it with this explanation : 

"In 1860 I was one of the Senatorial 
Electors on the Breckenridge ticket, and 
as such addressed a meeting of the people 
of Steubenville. The chief points of my 
speech were, that there were four legiti- 
mate questions before the American peo- 
ple, and one illegitimate; that the first 
four were aU within the well known pow- 
ers of the General Government, the other 
one was not, or at least doubtful. The four 
I stated as follows : 

" 1 . Such treaties with Mexico as secured 
us the transit over the Isthmus of Te- 
huantepec and preserved that country its 
republican independence. 

" 2. The construction of a railroad to 
the Pacific through the territories, by land 
grants for an equivalent of stock in the 
road, the stocks to be sold after construc- 
tion, the object being to checkmate Eng- 
land in her policy on the Pacific. 

" 3. A revision of the tariff, so as to 
make it as near as possible a free trade 
measure. 

" 4. Such laws, in relation to Federal 
patronage, as should prevent appointments 
to office to be a bait in our Presidential 
elections, except to a limited extent^ by di- 
viding the Federal oflices into classes, so 
that part should be filled as now at the 
President's pleasure, but the main body to 



be filled by regular advances, by fitness at 
all times, and free from political reasons. 

" These four questions the people ignored, 
and were earnestly discussing the other, 
Slavery., with which they, as Federal con- 
stituents, had nothing to do. To show this. 
I argued at length the powers of the Fed- 
eral Government in the premises, and 
showed, as I thought, that the first ques- 
tion to be settled in federal politics was al- 
ways, ' Where is the plain written author 
ity in the Constitution V I denied to the 
Federal Government all authority upon 
the subject of Slavery, and contended that 
even the delivery of fugitive slaves was a 
stipulation between sovereign States, and 
as such, and such only, obligatory on the 
States ; that a fugitive slave law was an 
act of supererogation. I asserted that the 
slavery question was at that time artificial- 
ly forced into Federal politics, by three 
great ambitious men, Douglas, Chase and 
Seward ; that those standing behind these 
men and expectiug office by their success, 
created all the real excitement in the ques- 
tion, and that Northern politicians were 
making the rights, inierests and feelings 
of the people of the South the play ground 
of Federal politics. I insisted that the 
question was not -is to who should rule, but 
how much any body should rule ; that the 
Federal patronage was too large, and that 
its reasonabld reduction was the issue, and 
not slaverv. 

•' To these views Mr. Marsh excepted by 
the letter which I enclose, dated November 
I9th, I860. I replied November 27th, and 
the correspondence continued until spring. " 

We shall publish each week a letter from 
Mr. Marsh and Mr. Reemelin's reply, 
until closed . Four years have passed since 






the correspondence— the points discussed 
are still unsettled. We think the letters 
will interest our readers, as they come 
from two gentlemen well known in the 
State, who represent the two opposite par- 
ty principles, which have been the point 
of contest for seventy years. 



Stecbenville, Nov. 19, 1860. 
Bear Sir : I listened with much interest 
to your address in this town on the 1st 
inst., as I always have done to your well 
considered arguments on any subject, so 
different from the mere rhapsody and de- 
clamation with which most partisan speak- 
ers on all sides entertain their audiences. 
Our National affairs surely have enough of 
sound philosophical principles in their ele- 
mentary substance to pay a thinking man 
richly for searching out and developing 
them for the earnest instruction and en- 
lightenment of his less favored fellow cit- 
izens, instead of entangling them in' so- 
phistries or blinding their judgments and 
substituting passion by ringing the changes 
on party names which once had a definite 
idea attached to them, now long since 
passed away, \7hilst the names are used by 
friends and foes as passports for directly 
antagonistic notions. The philosophical 
principles of our government found no 
prototype in the institutions of modern 
Europe, and consequently not in its recog- 
nized social philosophy. Milton, and if I 
do not mistake, one or two German wri- 
ters of a still earlier age, shadowed forth 
some germs of the idea. Luther in iact 
by boldly claiming freedom for the con- 
science laid the broad foundation on which 
personal and civil liberty have since been 
erected. In fact how could tyranny over 
the persons of men stand and justify itself 
in the face of a free and enlightened con- 
science? It has been repeated so often 
that the early emigiants to this country 
came here to enjoy liberty of conscience, 
that it has almost passed into history that 
they came for that purpose only. Nothing 
could be more erroneous. They came to 
enjoy liberty in both respects. They did 
not confound liberty with anarchy. Their 
idea was a community-^self- governed 
under self-imposed restraints, which pro- 
tected alike the rights of all, whether ma- 
jorities or minorities, and circumscribed 
alike the authority of all. I prefer the 
word authority to power. It importR a 
lawful origin V Power too often has its ori- 
gin in the practical application of the ty- 



rant's maxim that "might makes right." 
The spirit or rather philosophy of our in- 
stitutions admits no such principle as the 
foundation ot any rightful authority. The 
elementary principle of our institutions is 
that the source of all rightful authority is 
in the governed. It results that all indi- 
vidual restraints are equal upon each, and 
that the restraints provided in the organic 
law, the constitution, are safeguards for 
the individual, no matter who, against the 
action of the body. Do you not see that 
before authority emanating from such a 
source so long as it remains true to its ori- 
gin there can be no inequality of personal 
rights or of orders in society. Is it not 
manifest that so long as public virtue pre- 
vails over corrupt ambition and base deg- 
radation, the public good, in other words 
the humanitarian and the utilitarian, must 
be the true philosophy of such institutions, 
for the cogent reason that they are the ob- 
ject for the advancement of which the insti- 
tutions were founded? Is it correct in 
reasoning upon the operation of institu- 
tions so founded to argue that the minori- 
ty is oppressed by the majority so long as 
the authority is exercised within the limits 
of the organic law, and its enactments op- 
erate indiscriminately upon all. Would 
it not be still more incongruous to claim 
for the minority the authority to control ? 
In how small a minority should the author- 
ity be lodged ? The history of the human 
race proves beyond all peradventure, if it 
proves nothing else, that power,, not to say 
authority, is ever passing trom the many 
to the few ; and further, that just in pro- 
portion as the members of the minority 
are diminished the liberties of the majori- 
ty are abridged until, when all power is 
concentrated in one hand the residue of 
the nation, the majority, have no rights the 
minority is bound to respect. If such has 
been the denouement of nearly every gov- 
ernment heretofore organized amongst 
men, however originally constituted, does 
it not show some defect in the principles of 
its philosophy ? or must we come to the 
melancholy conclusion that no race of man- 
kind are capable of perpetuating the spirit 
and substance of free institutions, al- 
though in a fortunate period of their his- 
tory men gifted beyond theJot of ordina- 
ry mortals had formed and illustrated 
them by practice under them, and com- 
mitted them to their keeping with the 
most solemn injunctions to transmit them 
unimpaired to the remote posterity of 
the founders ? I for one am not pre- 
pared to admit anything so sinister to the 
future enlightened freedom of my country. 



I do not fear discussion. Confident of the 
soundness and strength of her institutions 
I desire, I invite the most earnest discus- 
sion, the most acute investigation. The 
only danger I can imagine to onr institu- 
tions is from the supineness of our free- 
men. When an election of President takes 
place in which very few of the freemen 
participate, there will be danger that tlie 
people are about to resign the duty of self- 
government. Then, not before, they will 
be ready to resign the reins of govern- 
ment to a minority. I do not claim per- 
fection for our ancestors — their counsels 
were not always wise, nor did their prac- 
tice in all cases come up to their theory. 
I wish I could believe that slavery, Afri- 
can slavery, crept in as the unauthorized 
acts of individuals ; that legislation came 
only to modify and control an evil it could 
not eradicate. Although the acts of the 
colonial legislatures are not now reprint- 
ed nor extant, which authorized the intro- 
duction and sale of African slaves, there 
is abundant evidence even in the acts re- 
pealing them that such acts did exist in 
several States. The King's veto repeated- 
ly prevented the repeal of such laws in 
Virginia. As the new slave States were 
parts of old ones, no such introductory 
laws will be found in them. The laws of 
all of them do, however, prescribe who 
shall be slaves. It is curions that in Vir- 
ginia, by express statute, any less than 
one-fourth African blood is a voter, if free, 
and may be elected Governor or U. S. 
Senator, but if born of a slave mother is a 
slave, even if the African blood is bred out 
to long flaxen locks, blue eyes, the lilly 
and rose in the complexion giving token 
of unmixed Saxon pedigree — and such 
samples are to be seen. A leading Vir- 
ginia paper, some years since, admitted 
that African slavery, as such, could not be 
defended, and boldly defended it irrespec 
tive of race. That was at least more in 
accordance with ancient practice. But our 
complex system has wisely left it to the 
States, so far as tliey are concerned, the 
United States Constitution merely restrain- 
ing the States from enacting laws obstruct- 
ing the recovery of fugitives, and even in 
vthat putting such servants on a footing 
with apprentices. 

I have extended my letter mucli farther 
than I intended, and yet have hardly 
broken the subject. 

My intention in taking up my pencil was 
to invite you to a friendly discussion of the 
subject. The excitement of the election is 
now over, and even we, may be better pre- 
pared to give the just weight to the con- 



siderations to be urged on each side than 
we were before. 

There is one other point I will touch : 
Case, in a speech in the Senate, some years 
since, ridiculed the idea of the United 
States being a sovereignty. The denial 
lies at the base of all the modern depar- 
tures from early practice as to the territo- 
ries—without it all is heresy and non- 
sense. As a sovereignty the United States 
carve out a portion of the public domain 
before there is an individual lawfully there, 
provide as the Congress sees fit an organiza- 
tion for it and opens it for settlement. Who 
may settle theref whoever Congress permit. 
Are they citizens of the United States? They 
were represented in the Congress. Can 
they throw off their allegiance by chang- 
ing their domicil from a State to a territo- 
ry ? Are foreigners invited in ? May they 
deny the jurisdiction of the Government 
on whose invitation they entered? The 
States, as such, set up a claim to the terri- 
tories. Why not file a petition for parti- 
tion ? I can not, nor can you, treat such a 
claim seriously. It is only as citizens ot 
the United States that we have any inter- 
est in the territories. 

It is claimed that the term territory is 
equivalent to land. Beware ! Look at co- 
temporaneous use, not search lexicons 
which never give half the uses. Virginia 
ceded by the term territory, and reserved 
one-fourth the land. Has she the right to 
govern still f Connecticut ceded the ter- 
ritory and reserved nine tenths of the 
land. How did the parties understand it * 
France ceded the territory (French, terri- 
toire) of Louisiana by the term territory 
only. Can it be that France is yet right- 
fully entitled to the power of government 
over it ? Look and see how the cotempo- 
raries understood it on all sides. A claim 
by, France under this new notion would be 
a perfect sequitur, but it would wake some 
people as from a delicious dream. From 
that new stand-point they would at once 
deny their own position. Some Southern 
Senator, I do not remember who, has 
roundly asserted that without the much 
misunderstood clause respecting the terri- 
tory and other property, &c., the United 
States would not have had authority to 
sell an old cannon or a lot of old muskets. 
That was putting want of sovereignty 
strongly, by an example. But, if so, where 
will the same school find the authority to 
purchase? Not in that clause— at least not 
it we adopt the same rules of construction. 
By those rules the words " to dispose of" 
can never import to purchase or to ac- 
quire. Mr. Jefferson was very much em- 



barrassed (having adopted the strictest 
mles of the strict constructionists) how to 
justify the purchase of Louisiana and 
talked seriously of a curative amendment 
of the Constitution. Finding that the old 
Federal fathers of the Constitution who re- 
mained in Congress did not oppose it on 
that ground, nothing more was heard of 
the amendment, and the precedent has 
been repeatedly acted upon since, both to 
acquire and to cede away both land and 
jurisdiction by the term territory by force 
of the plenary authority of the nation as a 
sovereignty throughits constituted organs. 
You called attention to the phraseology of 
the ordinance of 1787. Are you aware 
that all the legislation of those days under 
the old confederation of independent States 
(vas requisitory upon them, not mandato- 
ry upon the citizens ? The sequence was 
inevitable. Some States complied with 
the requisitions, others did not ; there was 
no means of coercion — the confederacy 
became a rope of sand. The effort now is 
to construe the present Union into a eon- 
federacy of independent sovereign States — 
each State a sovereignty, the Union not a 
sovereignty ! ! ! Hamilton county has as 
much authority to secede from Ohio as 
South Carolina has to secede from the 
Union. An embassador from each would 
be equally entitled to represent a sover- 
eignty in the Court of France. Under our 
present Constitution the language of the 
law making power conforms to the gen- 
eral form of legislative language, manda- 
tory. Look into the acts authorizing Ohio, 
Indiana, Illinois, Michigan, Iowa, Wiscon- 
sin, Minnesota, to form Constitutions. See 
the Missouri compromise law and acts 
organizing territories before and since 
1820. In fact, outside of the States of the 
Union the United States is known as a na- 
tion only, one and indivisible. One at- 
tempt and one only, I think, was ever 
made to treat with a State, and that was in 
Washington's time ; the insolent foreigner 
had short orders to leave. The limitations 
and restrictions of the Constitution apply 
only within the States, without, its action 
is controlled by the spirit of our institu- 
tions. In founding new States in our wide 
domain we should consider what will con- 
stitute the freest, most prosperous, most 
virtuous people, and those should be 
adopted. To sanction any other would be 
an abuse of power, not an exercise of au- 
thority. If Brigham Young's system of 
polygamy best answers the standard, so be 
it ; if it is a curse and a national wicked- 
ness the national Government is responsi- 
ble before the civilized world and before 



Heaven for every hour it is unprohibited 
and unpunished. 

Excuse my want ot coherency in this 
long letter. It has been written by snatches, 
sometimes broken in upon by the business 
in Court. Should you consent to talk over 
these matters with me by pen and pencil, 
we may at least benefit ourselves and pos- 
sibly be useful to others. I shall search 
for correct principles, for truth, and have 
fuU confidence that you will do the same. 
Very respectfully, 

RoswELL Marsh. 

Hon. Chas. Eeemelin. 



Cincinnati, Nov. 27, 1860. 
Hon. RoswELL Marsh, Steuheinillc, Ohio : 

Dear Sir : I have received and read with 
pleasure your esteemed favor of the 19th, 
though I see very plainly the quiet sar- 
casm with which you attack some of the 
main positions of my speech in jour city, 
and I would have answered before this if 
a little debate with the Commercial had 
not kept me from it. I suppose you see 
this journ&l and you can there see how we 
meet and parry each other. 

I agree with you that our General Gov- 
ernment must not be judged by European 
political philosophy, and that their reason- 
ing upon civil Government is seldom ap- 
plicable to our Federal system, but I am 
somewhat puzzled to find you placing 
yourself upon the very ground which the 
public economists of Europe (I admit 
them to be some of the best of them,) oc- 
cupy, to-wit : that humanitarianism and 
utilitarianism are to be our test of public 
measures. It is, as I conceive, impossible 
for you to be right in applying this Ben- 
thamian, (very good in its plaee) maxim 
to our Federal Government. Every re- 
flection I have been able to give to the 
subject enforces the conviction that an ex- 
tension of the powers of the General Gov- 
ernment is the rock upon which our Fed- 
eral system must, if ever, go to pieces. — 
" Consolidation,^^ using Chief Justice Mar- 
shall's words, " and not dissolution, is the 
point of danger." The only injury that 
can ever happen to us, as a people, must 
spring from an unauthorized exercise of 
power. I think our General Government 
too large now, even when confined within 
strict constitutional limits, but let your 
axiom " fo do all that may be useful and 
humanitarian " be the rule, and all our 
freedom is gone ; then extensions of con- 
stitutional powers will always be, as in the 
past, asked under the pretext to do us 
good, and then if we accede to it in one 



instance, it is used as a precedent for fur- 
ther enlargements. There is no necessity 
for extending the uses of our Federal 
Government to all that is useful or human- 
itarian, because we have State and other 
local Governments through which to ac- 
complish anything proper that may be de- 
sired. To be sure, I am, in our local gov- 
ernment also, for the least possible exer- 
cise of power ; but between the two I 
would always rather any given power 
were entrusted to the States than to the 
General Government, unless, indeed, it is 
in its character essentially a proper attrib- 
ute of Federal authority, such as mints, 
etc. 

I never favored the idea that the minor- 
ity should rule, but I have insisted that 
the majority should rule only witldn the 
limits conceded by all, and to prevent an 
infringement of these limits, I am in favor 
of checks and balances through which 
minorities may, for the time being, arrest 
action but not dictate it. It is, besides, 
my deliberate judgment, that Govern- 
ments should not be fastened too tightly 
upon the people ; on the contrary, they 
should, like a well-fitting shoe, be easy to 
put on, hurt nowhere, fit all round, and 
yet easy to take off. Make our Govern- 
ment too rigid in its character, and, as I 
take the character of our people, they will, 
whenever driven to the wall, upset the 
Government rather than submit to op- 
pression, or supposed oppressive laws. — 
You look to the strength of our Federal 
Government for its permanence, I to its 
weakness ; and so true is this tlaat if the 
fathers had made it a little stronger than 
it is, it would have snapped before this. 

The supineness of our people in their 
primary capacity, the self -organized out- 
side portion of our governmental system, 
party tactics and party rule is, you well 
point out, the source of all mischief that 
surrounds us, and the reason is that it is 
the only force of our republican machin- 
ery which is undefined and unlimited, ex- 
cept so far as parties check each other. 
Take that check away and parties always 
grow meaner. There (in our parties) we 
have not the republican virtue we boast 
of, nor that respect for the rights of all, 
without which all Governments are a 
mockery. I see no help for this except 
putting nominations within the control of 
law. 

But if you mean to say that our people, 
whatever portion be in the majority, shall 
rule by power rather than authority, then 
I differ from you. Give me firm minori- 
ties and persuasive majorities. We Ger- 



mans have a proverb : " Rigid masters 
never rule long," and I think its truth has 
become proverbial in America, too. 

Upon slavery, I stand simply on the 
ground, 1st, that wo, the people of the Uni- 
ted States, had no power upon the subject 
before the Constitution was made ; we 
could not then free the slaves of the other 
States ; 2d, that the Constitution does not 
give us any power ; and, 3d, that we can't 
get power, either by presumption or by 
buying territories with the common money 
or otherwise. We certainly do not get 
more authority by purchasing more land ; 
and until the southern people, in due form, 
agree to give us the right to legislate, de- 
cide judicially, or to exercise executive 
power upon their right of property, we 
have not got it. That matter never was 
put into the common fundamental law ex- 
cept to the precise extent named, and we 
can't get it into the Constitution by our 
volition. Hence, slaves remain slaves un- 
til State sovereignty, by constitutional 
rule, for which the consent of all is pre- 
sumed to exist, intervenes, and there, and 
not in our General Government, are the 
questions you raise to be discussed and set- 
tled. 

Nor can I agree with you in your views 
on " sovereignty." The United States 
are a sovereignty towards foreign na- 
tions, so far as they represent in one legal 
person the sovereignty of all the States, 
but our Federal Government is not our 
(the States) sovereign ; we, the States and 
the people thereof, are its sovereign. It 
has delegated powers, the States granted 
them, and it could not, nor does it, have 
them without the grant, as it cannot 
frame out to itself authority by its own 
will. An agent may represent a sover- 
eign but is not sovereign in his own right. 

The purchase of territory by Jefferson 
was as you represent, a transcension of 
Federal powers, and it is ever to be re- 
gretted that the then President, Jefferson, 
did not adhere to his original purpose 
and have the Constitution amended, be- 
cause we, the children, have now to (xuar- 
rel over a point then left open and now 
rendered complicated by the lapse of time. 
It shows, however, how, necessary an un- 
deviating adhesion to States rights strict 
construction of the Constitution is, and 
how injurious every transgression of its 
plain provisions is. 

I think I have answered every material 
point of your kind letter. Nothiug would 
suit me better than a kind discussion with 
a gentleman of your experience, learning 
and legal acumen. I feel highly flattered 



e 



at receiving such an invitation from you, 
and if yoa will overlook the positiveness 
of youth as compared to your age, which 
I can't shake off entirely, the debate 
may be agreeable to you and profitable 
to me. 

Allow me to thank you kindly for your 
kind notice of myself and speech, and be- 
lieve me as ever, with deep respect and 
regard, Yours, truly, 

Chas. Reemelin. 



Steuben viLLE, Dec. 5, 3860. 

Dear Sir : Your favor of November 27th 
came duly to hand, and has been read and 
reread with much gratification on the whole. 
I could not but regret that you should 
think any part of my letter had a tincture 
of sarcasm. I assure you I wrote with no 
such feeling. Sarcasm forms no part of 
my character, and between earnest men, 
seeking for truth, it is, I think, not a legit- 
imate mode of argument. There is, you 
are aware, iu geometry a method of de- 
monstrating the truth by stating a kin- 
dred proposition not correct, and follow- 
ing it to its legitimate conclusion in an ab- 
surdity. This method is, I think, perfect- 
ly legitimate in investigating the philoso- 
phy and structure of a government. A 
proposition as to the authority of a gov- 
ernment, which, logically followed, ends in 
an absurdity, must be surrendered as un- 
sound. The enunciator must, in candor, 
do this, lanless he can point out some error 
or sophistry in the chain of argument 
whereby a false conclusion has been de- 
duced from sound premises. One of the 
greatest masters of language of any age 
has truly said that to detect a sophism and 
to detect the double or equivocal meaning 
of a word or phrase, is in nine cases out of 
ten one and the same thing. So far I think 
we shall be agreed. I propose to be gov- 
erned by sound rules, the above amongst 
others, in our inquiry, and to treat the sub- 
ject in regular order ab origine. 

I will, for the sake of simplifying the 
subject, begin with the condition of man- 
kind before the origin of human laws by 
custom, contract, subjection, or by any oth- 
er mode. Can we doubt that every human 
being came, and yet comes into the world, 
endowed by the laws of his Creator, the 
laws of nature, with equal rights; that the 
most important of these are inherent and 
inalienable — as life, liberty and the pursuit 
of happiness ; that governments (legiti- 
mate governments, self-imposed restraints, 
authority, not power which comes from 
without) are instituted amongst men to se- 



cure these, deriving their just powers from 
the consent of the governed. There lies, 
in a nut-shell, the philosophy of our institu- 
tions. 

I do not here include in any form the 
subject of slavery. That is a distinct sub- 
ject, we may or may not investigate ac- 
cording to circumstances. Sacred writ has 
announced tha^God made man upright, 
but he has sought out many inventions. 
There can be, I think, no doubt that the 
earliest form of government amongst men 
was the patriarchal. In its origin it par- 
took of the absoldte and the reverential. 
It would be too long to trace its mutations, 
or in modern language, its progression, as 
the two elements, iu the expansion of fam- 
ilies, became antagonistic. Suffice it for 
the present purpose to say that they cul- 
minated in Europe at an early day in 
modern history in (with the exception of a 
lew spots) the absolute supremacy of the 
philosophy that all power (the word had 
a potent meaning) was inherent in the 
hereditary chief of the tribe or people, no 
matter by what name or title the one or 
the other was called, and that whatever 
was conceded fmm him to those beneath 
him flowed from his free and unrecompens- 
ed bounty. Now, let us look at the an- 
tagonist principle : I do not doubt that it 
floated as a wait from an early period over 
the surface of modern Europe ; but its first 
most imperfect germ unfolded itselt in the 
Anglo-Saxon Magna Charta in the thir- 
teenth ceutuiy. It lived as feeble as a 
rushlight and threw its beams no farther 
until Milton lit bis torch at its hallowed 
fires. His torch re-illumined the dark cave 
in which the reverence for rightful author- 
ity had been secluded for ages. By right- 
ful authority I mean, in this connection, the 
reverence due to that wisdom and experi- 
ence which seeks the best good of the body 
of the tribe, clan or people, as contrasted 
with the absolute power which seeks only 
the glory and prosperity of the individual 
ruler. The breaking down and disappear- 
ance of patriarchal genealogies left no hope 
of returning literally to patriarchal forms, 
but the spirit of patriarchal government 
consisted in tlie equality of natural rights. 
For the family or tribe (identical terms) 
had been substituted the people inhabiting 
a certain district of country. 

Now, how stood the territory, portion 
of country, constituting the thirteen origi- 
nal States of this Union f The country 
had been discovered and was claimed for 
and on behalf, not of the people of Eng- 
land, but of the Crown or King of Eng- 
land, in whom not only the right of juris- 



«l lotion, but of property was and is, by the 
})hi}osophy of tbo Englislt Constitution 
(a sample of all European Governments,) 
lodged, and to whom it returns to be re- 
granted on certain contingoncies. The 
King, not Parliament, granted the country 
in parcels to certain persons for considera- 
tions, and on conditi(»tis, granting rights of 
self-government within defined limits, re- 
serving tlie appointment of executive and 
judicial magistrates and a veto on all active 
legislation by the colonial legislatures, to 
himself. The language of all these grants, 
as well as the diversities of their extent, 
prove that they were granted and ac- 
cepted, not as a restoration to the people 
of a part of their inherent rights, but as 
voluntary grants flowing from the bounty 
of the Crown. 

Difficulties arose. The people, while 
acknowledging the authority of the Crown 
and their allegiance to it, denied utterly 
the authority of Parliament, and com- 
plained that under bad advisers the au- 
thority of the Crown was abused to op- 
press the Colonists for the benefit of oth- 
ers. Seethe Madison papers, vol. 1, p. 13, 
for a succinct statement of the attitude 
assumed toward the King and Parliament. 

The Thirteen Colonies, taking the name 
of States, thus separated from the parent 
stock, had a tabula rasa on which to found 
new institutions according to their own 
views of right. The Declaration of Inde- 
pendence foreshadowed the spirit, the 
philosophy, of those institutions ; and in 
very few and rare instances are our or- 
ganic or statutory volumes sullied by any 
sentiment not in accordance with it. Must 
not organic laws, founded in such a spirit, 
be intended to promote the prosperity and 
the happiness of tlie people in strong con- 
trast to the advancement of the glory and 
renown of the ruler? You think, my 
friend, that I adopt the Benthamite phi- 
losophy. I have read a few exrracts from, 
and some criticisms on Bentham. His 
works I never read. If his theory of gov- 
ernment be what I suppose it is, my an- 
cestors put it in practical operation before 
Bentham wrote, if not before he was born. 
There is more reason to think he imbibed 
his ideas from their works. 

I fear from your letter that in one mat- 
ter I was not sufficiently explicit, though 
I intended to be carefully so. Our Con- 
stitutions confer delegated authority on 
selected agents for the public good. The 
Constitution limits and defines that au- 
thority, as I have said, for the protection 
of the individual against the action of the 
body. Now you will not go farther than I 



will in protesting against any department 
of the Groverument overstepping the lim- 
its assigned it in the CcusTituiiou, no mat- 
ter how plausible or even how pressing the 
exigency. I trust we are agreed on that 
point. I know no man or party in the free 
States, except a few insane men who voted 
for Gerritt Smith, who hold any other 
doctrine. I know Southern demagogues, 
for the purpose of stirring up enmity be- 
tween brethren, seek to confound the Re- 
publican party with the few Abolitionists, 
and in the same temper represent Hanni- 
bal Hamlin as a mulatto. They know the 
gross falsehood of the one just as well as 
they do the other. What I, in common 
with the Republicans universally, contend 
for, is that our institutions shall be admin- 
istered in the same spirit in which they 
were founded ; that is, for the public good, 
or, as you express it, the legislator, hav- 
ing the authority, shall determine the man- 
ner and the measure of its exercise from 
the humanitarian and the utilitarian stand- 
point. There can be no fundamental er- 
ror underlying such a principle, however 
the legislator may err in his action upon 
it. I have not condensed as well as I 
thought I could, but I trust you and I will 
understand each other, and that no point 
of disagreement will be found to exist be- 
tween us so far. I now aj>proach a part 
of the subject upon which our views may 
at first be found diverse — I refer to the dis- 
tribution of authority between the State 
and the general governments. In the di- 
versity of views on that subject lies the 
whole source of our present difficulties, so 
far as men's minds are divided in good 
faith between the two. I throw out of 
view a little knot of men on both sides 
who are bent on mischief and are astute 
in seeking pretexts for accomplishing it. 
Neither you nor I would waste argument 
or remonstrance on them. I will only say 
to them — "/Sis sics, sis divuSf sum Caltha et 
710 n till spiro." 

I have extended this letter to an unrea- 
sonable length, and will conclude with the 
expression of my sincere respect and es- 
teem. RoswELL Marsh. 

Hon. Chas. REEMELm. 

P. S.— Having these copied detains them 
a day or two. 

Cincinnati, December 7, 1860. 
Hon. RoswHLL Marsh, Steuicnville, Ohio: 

Dear Sir : — Your kind letter of the 5th 
is before me and in reply thereto, I would 
most seriously impress upon you once 
more, that in discussing questions con- 



8 



nected with our General Government, we 
must, if we wish to avoid error, be unusu- 
ally guarded in applying to it the usual 
legal argumentation. It is mainly to be 
judged by international law, for the 
gources of its authority are not to be 
sought in deductions from the law of na- 
ture, or the laws of government generally, 
or rules of propriety or necessity, but 
from the fundamental compact, the Con- 
stitution, its primary and final fountain of 
power. Strange as it may seem to you, 
yet it is true, that special pleading is far 
oftener the correct way of eliciting truth 
in matters of our General Government, 
than generalization. For instance, you 
set forth the general natural rights of 
man, and you intimate at least, if yoa do 
not assert it directly, that they are the 
basis of our Federal system ; now nothing 
can be farther from the truth, because, 
rightly viewed, the Constitution of the 
United States contains, in reference to such 
miatters, only clauses prohibiting the Gen- 
eral Government from impairing or inter- 
fering with these rights as they stand un- 
der State authority, in any manner. In 
no wise has that Government authority to 
determine by its will such matters; the 
fixing of their status being purposely left 
to the common or statute law of the local 
governments. 

Again: You persist in pressing your 
idea, that the Federal Government was es- 
tablished to promote the public good and 
general welfare. Of course, that is its ob- 
ject, but only within its limitecl sphere, 
and only in pursuance of the powers and 
Government machinery granted to it by the 
Constitution. All despotisms were sad- 
dled upon mankind under the plea of the 
public good, and there is not now, nor has 
there been, a tyrant who does not barb his 
usurpations by some such pretence. Give 
to our General Government unlimited 
charge over the whole field of our public 
good and what may it not do ? You dis- 
claim any wish to see the Federal Govern- 
ment transcend its powers ; but, my dear 
friend, do you not see that the issue be- 
tween us, is whether the United States 
Government is one of limited authority, 
having none but granted powers, as I in- 
sist, or whether it may exercise unlimited 
authority, the public good being the only 
limit and fundamental reason of our con- 
federation, as you contend ; for if your 
construction of its sphere is right, it can- 
not transcend its powers, as they are as 
wide as general governmental authority. 
I say the public good was to a certain lim- 
ited, very limited sense, the object of our 



General Governinent ; and I contend that 
our fathers (if aGerman may say " our,") 
were particularly afraid of getting too 
much public good out of the Federal Gov-' 
ernment ; they reserved a good deal of the 
task of creating public good to their own 
individual production and the care of their 
State governments. In fact, do you not 
think that the framers of our system had 
a shrewd notion that the best public good 
was that which the people worked out 
with their own heads and hands ? Did 
they not fear that they were likely to 
get a spurious article from their General 
Government ? In Europe, aud Germany es- 
pecially, the people feel what kind of pub- 
lic good people get through Governments, 
and it has become an acknowledged polit- 
ical axiom, that the only real progress 
made in political reform there and here, 
lies in withdrawing from governments 
some of the former cares for the public 
good. Take public charities as an in- 
stance : the public officer placed over 
them eats in his salary the bread of twen- 
ty paupers. It illustrates the point I am 
suggesting. I admit we must have some 
public charities, but insist that they should 
be so instituted as not to encourage their 
spread, as private charity is cheapest and 
best. 

The foregoing remarks apply, also, to 
your proposed line of argument, to-wit : 
to run a thing into absurd conclusions, 
and thence demonstrate it untenable. — 
Many a policy may be absurd when car- 
ried to extremes, which moderately enter- 
tained and discriminatingly acted upon, is 
logically sound. We may carry our jeal- 
ousy of government too far, and we 
may make its scope too indefinite, and 
the exact truth as to our Federal sys- 
tem, doubtless, is that the public wel- 
fare demanded the establishment of a 
General Government, but it demanded, 
too, that the compact should be made with 
a special care not to grant this Govern- 
ment too many powers, nor any without 
limit. I often think that its provisions 
should have been even more guarded than 
they are. Do not its few errors lie in 
occasional granting authority too vaguely ? 
Would it not be a better Constitution if it 
had in its language been more circum- 
spect still ? Does a rigid and strict con- 
struction not make it safer to the States 
and the people ? Have we ever had any 
difficulty where its language is beyond 
cavil ? And have not and do not all our 
troubles come from sailing by slovenly 
reckonings ? Hence I said in my speech 
in your city, that the first step in all argu- 



9 



ment on Federal affiiirs shonld be to ask : 
" where is the power /" (I should have 
used the word autliority as corrected by 
you.) Now I understand you to argue, 
that we shonld first determine whether 
the proposed action is for the public good. 
There we differ ; the difi'erence is radical. 
I fear we shall never agree. 

I must also interpose a few remarks 
upon your triumphant ejaculation, after 
quoting a portion of the Declaration 
of Independence, " there lies, in a nut- 
shell, the philosophy of our institu- 
tions." I do not gainsay it, but would 
be pleased to have you point out to 
which of our institutions do you refer — 
the State or the Federal ? Is the vindica- 
tion of the inalienable rights of persons 
entrusted to the General Government 1 
They are in a most limited sense, but in 
their full vigor to the State governments. 
The fugitive slave and other clauses in our 
United States Constitution i>rove that the 
rights of person were not within the law- 
making authority of our Federal Govern- 
ment, and only in a few points within its 
judicial powers, and then only where con- 
flicts might arise between persons subject 
to diflerent State jurisdictions, and that 
then they should be adjudicated according 
to State law. You see " the philosophy 
of our institutions " was not all put into 
the Federal Constitution, nor is all the 
public good to be ground out by the Fed- 
eral hopper. 

In most of your historic statements, up- 
on the nature of government, we coincide ; 
but you are certainly in error in attribu- 
ting to Magna Charta the unfolding of the 
Anglo-Saxon idea of freedom and of re- 
versing the previous rule of power. In the 
first place it applied only to persons then 
free. It says : " nulliis liber homo est," 
(no free man); and as to trials SLud peers, it 
especially requires equals in these words, 
"nisi per legale judicium parium suorum, 
vel per legem teru^e," (the law of the 
land), which in our case would mean State 
law. Magna Charta is, however, but one 
of many incidents in which mankind, from 
necessity were compelled to recur to first 
principles, and ifc only proves that at that 
time such recurrence was necessary in the 
Kingdom of England. The German States 
and their people, including the Scandina- 
vian, never gave up as much authority to 
their sovereigns as the English had done, 
and they had no need to reclaim it. The 
only people never consolidated into one 
strong central government were my native 
countrymen and the Scandinavians, and 
while they may have suffered some for 



want of national strength, they have es- 
caped many aggressions on their liberties, 
I agree to your proposition tliar. the thir- 
teen colonies had, after the revolution, or 
even after the Declaration of Independ- 
ence, a ''tabula rasa," on which they might 
have written new institutions aceoiding to 
their own soveieign pleasure ; but I agree 
to it only as to the federal institutions. In 
the States (the successors of the colonies) 
rights of property existed presenting any- 
thing but a tabula rasa. Whence do our 
Eastern fellow-citizens get their land titlest 
I surmise that the royal prerogative, against 
which you aim so many arrows, has to 
stand as the strong, broad and main foun- 
dation for them ! Besides, were there not 
personal relations then existing, and in no 
wise erased, which had a black coat over 
them, and which made them anything but 
a carte blanche ! Those property rights 
stood then and stand now in the way of 
that ''normal condition" of which the 
Chicago Platform speaks, being a fact. The 
truth is, the fathers let all things, most 
sensibly, alone, for which they found no 
tabula rasa, and they wrote no "normal 
condition" into the only tabula rasa they 
had — the Federal Constitution ; a most wise 
policy, as under it alone the Constitution 
was a possibility. They strove for the at- 
tainable, and it they secured; had they at- 
tempted more they would have lost all; 
and as long as North America exists their 
course will remain the true one. Hence 
those only are wise patriots who watch and 
work, that the boundaries fixed by the 
fathers for the respective spheres of our 
States and our Federal Government be 
preserved, and who accordingly deny to 
the latter autliority over rights of person 
and property, save their protection, when 
under its limited jurisdiction. 

Bentham is a close reasoner, but an Eng- 
lishman and full of Anglicisms, and hence 
apt to lead ms astray whenever he argues 
from the stand-point of a Government en- 
dowed with legislative omnipotence. Hi« 
essays I like to read, because he occasion- 
ally breaks through accepted notions, which 
I esteem of value to such readers as can 
form opinions of their own. 

I do not charge upon the Republican 
party abolitionism, though I am aware 
that the latter is all the temper it has got. 
I charge upon it a desire to overslaugh the 
Constitution under a humanitarian ideal 
with which that instrument has nothing 
whatever to do. Nor do I participate in 
any slanders upon Senator Hamlin. I must 
however insist that the Republican party, 
and he with it, labors under a fundamental 



10 



error when it adopts, as a federal rale of 
action, axioms merely from utilitarian ar- 
gameuts, for to my mind nothing ean, hav- 
ing reference to the General Government, 
be useful and humanitarian enough to au- 
thorize an iufriugement of the Constitu- 
tion. 

I regret as much as you do the irascible 
temper of our Southern statesmen and fel- 
low-citizens, but remember their all is at 
stake : with us only an idea and a false one 
at that— anti-slavery ; false I mean in 
bringing it into federal politics. That there 
should be men South who, provoked by 
our meddling with their institutions, should 
write equally false, or rather let me say, 
totally false ideas, is but an echo of our 
own wrong. Let us quit dragging into the 
federal political arena views about things 
which concern us not, and the South will 
cease regaling us with such stuff as you 
speak of. 

I did not see the article you allude to 
in the National InteUigeneer, and would 
doubtless, like you, have turned it over as 
sophistry.* 

You are severe upon those of our fel- 
low-citizens who are engaged in saving 
the Union, and you wish them in the hands 
of a South Carolina vigilance committee, 
a wish which shows how hard you can be. 
I have no wish in tlie premises, having no 
power to act. Neither the outgoing nor 
the incoming administration suit me^ I 
fear the milk of the Union is badly spilled, 
for I see but little milk of human kindness 
left between the respective portions of the 
Union. As I never looked to force to keep 
it together, and as I perceive all hope of 
fraternal harmony dwindling more and 
more, I apprehend that de facto though not 
de jttre, I am a citizen of only half a 
country, and as my allegiance to the whole 
still lives in spite of all efforts to sileace it, 
I must even sing : 

" Life is but a moment, 

Life ia but a dream- 
Men are the passengers, 

They paddle down the stream." 

Truly yours, 

Charles Reemelin. 
P. S.— On re-reading the foregoing I see 
that I have used sarcasm, to which you 
have a right to object. I have not time to 
re-write the letter, please overlook them, 
and rest assured that nothing wrong is 
meant by them. 



Steubenville, Dec. 19, 1860. 

Dear Sir : Yours of the 7th inst. is re- 
ceived. I begin to fear that instead of 
progressing orderly in our investigations, 
finding wherein we are agreed and then 
calmly examining the matters whereupon 
we dissent, we shall be wasting our time 
and labor in misunderstanding each other. 

Now, my dear sir, in my last letter I 
said not one word on the General Goveiji- 
meut, except that I was now ready, in the 
close, to appioach that subject. You re- 
ply as if I had treated that only. I stated 
the equality of the natural rights of men, 
because without it, when men come to- 
gether to form the social compact, the 
community, when each must vest in the 
community by an organic law a jiartof his 
personal rights to form a new artificial per- 
son, strong enough to protect each in the 
enjoyment of the remainder, either he 
who possesses greater rights than another 
must give up more or they would not af^ , 
terwards stand equal in the eye of the law. ' 
I am not speaking of communities form- 
ed by force, by conquest, but by voluntary 
association, as all our original colonies 
formed theirs. I used the phrase tabula 
rasa, in its connection with strict propriety, 
because their legislative deijartment and 
its works was all their own and founded 
upon the principle of seeking their own 
happiness and prosperity. The executive 
and judicial departments were contam- 
inated by the European system of govern- 
ment for the benefit of the ruler. The 
two were incongruous and the revolution 



Steubenville, Decembers, 1860. 
*Deak Sir: — I have been reading a series of letters 
in tlie National Intelligencer puiporting to be address- 
ed by a if ew England man, who has emigrated South, 
to a brother who remains in New England. The Edi- 
tors vouch for him aa a clergyman. The form, I pre- 



sume, is hist^te as a mode of getting before the i)ub- 
lie. To that I take no exceptions. 1 have naught to 
do but with his sentiments and his course of argu- 
ment. Through a long, tortuous, wiredrawn chain of 
sophisms, he comes to the idea that all laen are not 
born with equal rights, bscause he, in South Carolina, 
sees them in possession of very diflerent amounts of 
rights, and he reminds his broth(^r that even in New 
England one man will not associate with another on 
terms of equality. Is he a fool, or does he think you 
and I such fools that by his columns of sophistry he 
can bewilder us untU we cannot discriminate between 
the laws of nature (Gods law) and the artificial rules 
of society ? 

I would reply to him and try for once to be sarcastic, 
but if the National Intelligencer should publish it, the 
paper would be burned in South Carolina by the hands 
of the cemmon hangman. There iscertaiuly noequal- 
ity in such a state of things. We read and consider 
what they say, but when we attempt to answer them, 
however candidly, our arguments are dencunced as 
incendiary. An" esjjionage which would disgrace the 
Austrian police prevents any man South, however in- 
telligent, from reading the corrections of the mon- 
strovis fables they propagate against us. I hear that 
certain men are humbly inquiring of them how much 
of our rights we must give up to pacify them this time, 
and in response I see a Soirth Carolina paper exultant- 
ly exclaims : " They waver— hit them again and they 
will yield" May any Republican memberof Congress 
who falters fall into the hands of a South Carolina 
vieilance committee. Yours, 

Pv. MAKSH. 

Hon. C. Reemelin. 



11 



If. tf\n<f .i^rnA 'W^l. (»' > ,>Riivf "tff'i 

swept the foreign elements from the scene. 
They then had tabula rasa to found their 
institutions, their organic hiws, upon uni- 
form and consistent principles. 

I can imagine but two objects in consti- 
tuting a state, a government. One is the 
benetit of the people constituting it, the 
other is the benetit of the ruler. The 
first must in charity be presumed to be the 
object, when it is the work of the people 
themselves. 

The conqueror who imposes his laws 
upon a conquered people, or the tyrant 
who has trampled the free constitution of 
his country under the hoofs of his horses, 
must be credulous indeed if he expects to 
be believed, however strong or frecpient his 
professions may be. True it is the world 
has seen that a people may fail for want 
of skill to found a free government, or 
have failed for want of patriotism and vir- 
tue to perpetuate it. So under despotic 
forms a few rulers have had the wisdom to 
discover that their own and the people's 
interest was the same, and the virtue to 
pursue it. These rare anomalies drew 
from the poet the craven sentiment : 

" For forma of government let foola contest, 
That wbich is be.-<t admiuistoied, ia beat." 

Such an idea might console for a moment 
a helpless people for the loss of their liber- 
ties, but would not meet your or my ap- 
probation as a guide in founding a State. 

There was nothing invidious, my friend, 
in my speaking of my ancestors — I am not 
one of those who look sinisterly on those 
who come from other lands to cast in their 
lot with us. That I was born an American 
citizen was a circumstance for which my i 
ancestors, not I, are entitled to all the I 
credit. A foreigner who comes here to en- 
joy himself and to transmit to his proteri- 
ty the benefit of our institution?, lias far 
more merit in the matter than I can claim. 
But, says a new vamped and narrow-mind- 
ed patriot, bad men come. Well, what 
then ! Are there no bad men amongst 
the native-born ? Why, does not your 
logic bring you to prohibit procreation to 
cure the evil ? Tlie logic is the same and 
the application fully as pertinent. The 
bitterest thing I ever said to a political ad- 
versary, and bitter enough it was, was to 
tell him, in a public meeting, that if he 
had been born under a despot he would 
have remained a contented andsubmissive 
slave. As tlie taunt was richly merited he 
did not perceive any sting in it. Excuse 
this episode. I hope with the above ex- 
planation you will see my last letter in its 
true meaning. 

I will now take upi the subject of the 



General Government and the authority 
conferred upon it by the Constitution. 

The short-lived confederation of the 
States wliioh preceded the present Gen- 
eral Government, acted upon the States 
only, and through them upon the people. 
It contained in its Constitution the seeds 
of its own dissolution ; it was formed by the 
States, and amounted to little more than a 
treaty. In one thing tlie result was dif- 
ferent from the consequences of a treaty. 
The States, as separate States, were nev- 
er known to foreign nations as sovereign- 
ties ; their archives can show no appoint- 
ments or receptions of foreign ministers or 
consuls. This is histoi'ical. 

That the confederation fell to pieces and 
was about to expire in its own imbecility, 
having no coercive authority, read Mr. 
Madison's introduction to the debates in 
the convention which framed and submit- 
ted to the people of the United States the 
present Constitution. That Constitution 
when framed, was submitted, not to the 
State authorities, but to the people in 
their primary capacity in convention as- 
sembled, for approval or rejection. It was 
approved and adopted by the people of the 
United States in every quarter. « What had 
the States to do with it "( Their machinery 
wag used as a convenient mode of assem- 
l)liug the people by their representatives 
for that special purpose. 

The conventions once assembled, theiir 
State Constitutions interposed no valid 
obstacle to their action. Why not *? Their 
commission was paramount to it— that 
was a very sufficient reason. 

Now, whether the conventions be called 
conventions to amend their respective 
State Constitutions, or conventions to ap- 
prove and adopt, or disapprove and reject 
the proposed Constitution of the United 
States, the effect is the same. All the 
conventions approved and adopted the 
Constitution. Some amendments were 
suggested and have since been adopted. 
Did that Constitution add to the aggre- 
gate of authority conferred by the people 
upon the Government i As I read it, very 
little, and that little applicable to the new 
relations arising out of the transaction 
itself. What then did it do i It simply 
took from the State governments certain 
portions of organic authority, and from 
the government of the confederation cer- 
tain other portions of organic authority 
before vested in it ; but which it was too 
powerless to exercise, and conferred them 
upon a new government over the whole 
nation, created for the express purpose of 
receiving and exercising them. 



12 



Now, my friend, I mnch fear, or rather 
bope, that I misunderstand you. You 
say, "rightly viewed, the Constitution of 
the United States contains only clauses 
lorbidding the General Government, ' &c. 
The language of forbidding or limiting is 
negative aud would run : " Congress, the 
President, the judiciary, shall not," &c. 
Now, art. 1, sec. 8, of the Constitution of 
the United States begins : " The Congress 
shall have power,' &c. Would not a 
Constitution, clothed only in negative 
language be an absurdity, except it were 
based upon the principle or theory that 
authority had its origin, and was inherent 
•in the Government, not in the people ? 
Tested by that theory, may not the gov- 
ernment do whatever is not expressly 
prohibited to it in the Constitution I I 
shudder at the idea of such an unlimited 
Government. 

There are prohibitory clauses in the 
Constitution. They are of two kinds :— 
Ist. Limiting grants of authority to Con- 
gress, made in general language. These 
have the eifect of excepting certain mat- 
ters which were embraced in the general 
language out of the grant. The i/th sec- 
tion of the Ist Article is devoted to that 
subject, {|nd each clause is a limitation of 
some grant in the eighth section. Most of 
the amendments are additions to that 9th 
section. 

The second class are prohibitions on the 
States. The 10th section. Art. ], is devo- 
ted to this subject. The object was to pre- 
yent collisions by the exercise of concur- 
rent authority. Hence, in many cases, the 
State and General governments are ad- 
mitted to have concurrent authority, the 
States having before had it, and there be- 
ing no prohibition on the States, although 
the authority is expressly granted to the 
General Government, but not an express 
exclusive authority. 

Note the first section : " All legislative 
powers herein granted." "Herein grant- 
ed " has great cogency. 

There is another view of the forms of 
the grants not less important, and which, 
from want of due discrimination, has given 
rise to more legislative aud judicial con- 
tention than any other. The 8 th section 
g^rants to Congress power to accomplish 
certain specified objects. The section is 
silent as to the means by which those ob- 
jects were to be accomplished until the 
■ last clause, with a single exception. The 
means of accomplishing the object speci- 
fied in the 8th clause are pointed out, and 
the length of time is the only thing over 
which Congress has any discretion. The 



contests over the last clause have been al- 
most infinite, and have divided legislators, 
executives, judges, lawyers, and through 
them the people, into two schools, the lib- 
eral and the strict constructionists. These 
two schools have longstriven for suprema- 
cy in the Government, and it is a curious 
fact that in practice the measures requiring 
the most latitudinarian construction have 
been introduced and carried through by 
the strict constructionists. For example, 
under the power to regulate commerce 
with foreign States, the embargo in Mr. 
Jefferson's administration forbade all for- 
eign commerce for years, and in effect all 
coasting trade also. Yet the strict con- 
structionists sanctioned it, and long reflec- 
tion on the subject has satisfied me that 
the decision was right. How would the 
same construction be received now as to 
commercial relations with a refractory 
State? I have never doubted that the 
Constitution was violated in the admission 
of Texas as a State by treaty. It was a 
palpable infringement by the President and 
Senate upon the jurisdiction of another de- 
partment, and which was, from the natare 
of the subject, exclusive. 

A great source of contention lies in con- 
founding the objects to be accomplished 
and the means by which given objects are 
to be accomplished. 

Mr. Madison, in the forty-fourth number 
of the Federalist, has treated the distinc- 
tion with his usual luciduess. Few have 
ventured to assail his position in front. — 
Two modes of resistance to legislation to 
carry into effect the powers of the Gener- 
al Government have been used. One is to 
insist that the proposed legislation is not 
a means but the exercise of a primary 
power not granted. The other is to insist 
that the legislation proposed is unconstitu- 
tional because there are other means by 
which the object may be attained. By 
that logic if there were two ways of doing 
a thing, however strenuous the command 
to do it. and however urgent the necessity 
for doing it, must not Congress be suspend- 
ed in a state of equilibrio'^ It seems 
strange that rational men will resort to 
such arguments, but there are volumes of 
them in print in our history. 

The authority of the General Govern- 
ment in its intercourse with foreign States 
Jind outside of the Union, including its ju- 
risdiction over the Territories of the United 
States, those held at the adoption of the 
Constitution and those acquired since, I 
will reserve for another letter. The origin, 
progress and spread of slavery, the sources 
from which the supply has been furnished. 



13 



and the varions forms which the inatitn- 
tion has assumed in different countries and 
at difft^rent times, form a very interesting 
subject of inquiry. I have given it no 
small share of attention in various aspects, 
and, if agreeable to yon, shall be pleased 
to exchange views with you on the subject. 
I am no abolitionist, and look at it from 
the stand point of a social relation, and the 
policy or impolicy of its extension and 
introduction by the authority having con- 
trol over it. 

With much respect, 

RoswELL Maksh. 
Hon. C. Reemelin. 



Cincinnati, December 27, 18(50. 
Hon. RdswELL Maksii, SteHhcnviUe, Ohio : 

Dear Sir : Your esteemed favor of the 
19th should have been answered before 
this if Christmas had not intervened. 

I desire most pointedly to stick to the line j 
of discussion marked out by you, and j 
you must not forget that I am but follow- 
ing you and am answering your positions. 
Our discussion arose out of my speech at 
your ciry, and ia that I discussed the gen- 
eral principles of our Federal Govern- 
ment, and not of our State governments, 
nor of government generally. I had to 
presume, therefore, when you first wrote, 
that your remaiks on questions of civil 
liberty had reference to our Federal Gov- 
ernment, and were intended to lay the 
foundation for arguments applicable to it. 
For this reason I could not do otherwise 
than deny, most emphatically, that the 
people of the several States had any tab- 
ula rasa before them, when they fixed up 
their local aflt'aiis, after the revolution, and 
after the recognition of their several sov- 
ereignties by Great Britain ; nor could I 
agree to your views, that there was then 
an unwritten page, only so far as the new 
general government was concerned, and 
as to it, not in that unlimited sense in 
which you seem to state it. This I now 
repeat and reaffirm, that rights of person 
and property were not then newly fixed, 
but left, with very few exceptions, as they 
found them ; and moreover, that no pow- 
er to establish or change those rights was 
given to the law-making power of the 
Union ; that government resting in those 
matters on personal and property rights 
on the status then existing in the States. 
Do you gainsay this? 

Hence I say : As to the governments 
then in existence, or the Federal Govern- 
ment then founded, the only unwritten 
page was that of the latter, and the terri- 
tories ; and even as to the United States 



Government and the territories, a few 
shadows of previous authority had, as it 
were, daguerreotyped themselves upon 
them, which could not in the nature of 
things be, and accordingly were not, erased. 
I mean by this, the fact that we had gone 
through a Avar with Great Britain, using 
a united government machinery ; that we 
had an army and navy, a joint glorious 
history; had sovereign States, and in them 
relations of various kinds which had a 
lawful existence ; that above all there ex- 
isted a moral sense of duty to remain a 
united people, to work out as such a des- 
tiny of greatness, whence had grown the 
corifederacy, and subsequently our pres- 
ent Federal Government. 

Even so was it in our territories. Eng- 
lish law gave them to the States as the 
legal sequence of the recognitic^ of their 
several sovereignties and independencies, 
they being deemed the successors of royal 
prerogative iu this matter, a very mean 
legal fiction, perhaps you will say, but 
one which was insisted upon by Connecti- 
cut, Virginia, and especially Massachu- 
setts as to Maine, and New York as to 
Vermont, and other States as to wild 
lands. Thence arose a conflict, and from 
it cession of our teriitories to the Confed- 
erate, and also to the United States, and 
from, in pursuance of and by right of ces- 
sion, the territorial organization. So, you 
see, here as elsewhere, as far as history 
informs us, there was no entire ./Vee page 
to start with ; something always was and 
is precedent, and from precedent condi- 
tions spring new creations. The prece- 
dent must always be understood if we 
wish to understand the new. We may, 
for arguments sake, suppose that there 
has been a tabula rasa sometime, but we 
have no facts for it, ransack history as we 
may. I used to tlauk Solon, Lycurgus, 
Moses and such great legislators, carved 
out new institutions upon stone tables, or 
wrote them on parchment ; I have 
learned better, and now see that their wis- 
dom consisted in shaping the old into new, 
into better, but still climatically, socially 
and historically liarmonious tonus, re- 
specting, however, existing relations to a 
very great extent. 

Dropping this point I admit that all gov- 
ernments, both State and National, should 
be instituted for the benefit of the people, 
and especially the protection of minorities; 
but I must again say tliat in my opinion 
the chief benefit the people will ever got 
from any government, consists notiu what 
good it creates, but in what evil it prevents. 
Government <jood is always left-handed 



14 



good. Governments of large powers and 
of unlimited autlioT'ity are always objects 
of fear, and the United States Congress, 
when it moved amendments to the United 
States Constitution, (the bill of rights) 
well stated the matter when it gave as a 
reason for circumsci'ibing the powers of 
the Federal Government, the idea that so 
doing would " extend the ff round of jiublic 
eonfidence " of those subject to it. An un- 
limited government, even if nominally re- 
publican, is never safe for a people nor its 
rulers. I put this in so that it may, like a 
beacon light, keep us from fixlling into 
heresy by the wayside. Government is 
mucli more a question of quantity than 
quality, though the latter should always be 
looked to ; and even the best government, 
if it governs or has to govern too much, is 
dangerous to liberty, to say the least. 
Liberty exists in fact only for and with 
virtuous men, and as governments do not 
and cannot create virtue they cannot ere 
ate liberty. So too with prosperity. All 
we should aim at in government is to see 
that the happiness created by all and the 
wealth produced by industry be not wrong- 
fally taken away. You see that in no case 
will I look up!)n government as the creator 
or originator of rights of person or things. 
It is and should be only its iirotector ! 
That government is best which confines 
itself to this duty and does it well. 

I know full well that you have no na- 
tivist feelings and did not mean to impute 
them to you. I have known you too long 
to even suspect that you are an American 
in any narrow sense. Would that all our 
fellow-citizens had as enlarged views as 
yourself. 

I have not one word to say against your 
view as to the relation the United States 
Government bears for all the States to 
wards foreign nations. There its sover- 
eignty is clear, unquestioned and unques- 
tionable, and this was true ol the old Con- 
federation and also of our present Federal 
Government. You err fundamentally, how- 
ever, when you turn this State- conferred 
sovereignty towards the States and their 
people ; and still greater is your error when 
you try to scratch the States and the peo- 
ple thereof, as the contracting parties, from 
the Constitution. I know ingenious argu- 
ments may be drawn from stray veibiage 
in the Constitution, but they are but inge- 
nious. The States stand alive and kicking 
in broad daylight in all our history ; State 
delegates sat in the convention that made 
our Federal Government; iSfa/cs, or rather 
their people, as xyeoples of States, ratified 
it ; nine States, not a popular majority, 



were necessary to give it existence : States 
elect the President; States sit in the Sen- 
•ate, and only in another form in the //owse. 

I concede that there is coercive authori- 
ty in the Constitution, but not to the ex- 
tent generally claimed ; in fact, we have 
not in our governments, any where, that 
absolute, uncontrollable and irresistible 
summum imperii,^'' whicli Blackstone attri- 
butes to the Government of Great Britain 
(King and Parliament as the sovereignty 
of England,) least of all is it in the General 
Government. I know very well that the 
present is a more perfect union than the 
old, but "more perfect" does not mean 
" absolute," nor "irrevocable," nor "per- 
petual." 

You clearly misunderstand me when you 
quote a portion of my previous letter. I 
meant that as to certain fundamental rights 
of person and property, the United Spates 
Constitution contained only clau.ses for- 
bidding federal interference. I r< t'cired to 
the bill of rights especially, and did not 
mean to deny that there are any af^il•ma- 
tive powers in the Constitution ; Vnt, af- 
ter careftilly examining the yiiicL' and 
section of the Constitution you poiut out, 
being the oue having reference to the leg- 
islative authority of Congress, I again af- 
firm, that in the pov, ers there enumerated 
there is not a single authority for regula- 
ting rights of person and property. The 
distinction between the Federal and our 
State Constitutions is vital. Id the latter 
we have general legislative authority, iu 
that of our Federal Government onl.y spe- 
cial, and it, moreover, expressly named as 
authority '■'herein granted. "' Granied by 
whom ? The States and the people there- 
of! And mark especially reserved to the 
powers granted ! Besides, have we not 
an express reservation by which these pow- 
ers may be annulled I You will see, there- 
fore, that I meant to assert the very reveise 
from what you seem to infer. Not all not 
prohibited can the Government do. I as- 
sert the reverse of that : the United States 
Government can only do what it is author- 
ized to do ; a clause forbidding power never 
gives authority iu that Government. 

I had myself seen wiih regijtl the seem- 
ing and often real centralism and federal- 
ism in the action of some of our so called 
Democrats or States llighis men, and as 
you will bear me testimony, I have never 
faltered in bearing testimony against my 
party in this and other matters, where there 
was evidence of a departuie from its prin- 
ciples and rules. I know and feel this the 
more, as evils will flow from this to our 
common country which I shudder to think 



16 



of. It is a hnmiliating, but wholesome 
confession, which is clue to the living and 
the dead, that in Church and State high 

{)rincii)les are but too often merely the 
adder to power. Government is central- 
ised power — its acts nre always centraliza- 
tion in degree, and the strictest construc- 
tionist, when clothed in authority, will, 
under stress of circumstances, construe 
himself (far too often for the public weal) 
into the foice he believes necessary. lie 
is surrounded by men who want the force 
or power for eeltish ends, and they ajiplaud 
the exercise of authority pleasing to them 
and then abuse the precedent set. All 
things have their parasites, the Democratic 
party, too— and new as your party is, it is 
not without them. You will lind the same 
inconsistency in religion and its churches. 
The severe ascetics ci eate, in spite of them- 
selves almost, precedents for the most ex- 
tensive clerical powers. So, too, in mill 
tary matters, tlie danger of war in Repub- 
lics lies in the fact, tljat its paraphernalia 
loom over into civil life, and are never en- 
tirely put away after the war is over. — 
Jackson exercised powers in his contest 
with the United States Bank, which finally 
ruined the Democratic party ; I refer spe- 
cially to official patronage. 

And yet, is it not true, that in Church 
and State, we must anchor in the strictest 
standard rules and axioms, or all abstract 
truth would be swallowed up in hasty 
practice. Ch'.ist would be as much as 
tonished at the church rulings of his pre- 
lates, a;? Jefferson, Calhoun and Jackson 
would be at the precedents now grown out 
of some of their acts. P^xercising author- 
ity is for far too many too severe a test of 
their principles; it brings doctrines square 
home to practice, and then they tail in the 
hour of trial ; but all this conveys to me 
only the lesson, to watch my party as well 
as my govei'ument, for both, as a modern 
author says, will always be as bad as we 
let them be. In no case should such facts 
be jised as an argument against the prin- 
ciples we deem right. We must still cling 
to the axiom, that it is unsafe to let gov- 
ernment go ahead without restraint, and 
Christ's humble doctrines are still right, 
even if his churches are i)roud. JJiahcs 
are useful in machinery, but brakes must 
be brakes, not stops. Strict princii)les are 
the brakes on government — as such they 
are ever useful. The rule is well under- 
stood in locomotives. We propel by steam 
and run with brakes for safety. Take the 
latter away and every railroad train is in 
constant danger. So in government, we 
must have power, but we need, too, the 



vigilance of the man of strict principle, 
not in office so much as in the tribune, to 
warn of danger ahead. 

I would like to elaborate this idea, but 
have not the time. Too great elaboration 
I deem, however, hardly j ust itiable between 
us. Our letters will be worth to us more 
if we do not expatiate every idea too much. 
I am very busy any way just now, and 
must a.sk your indulgence. I wish you a 
happy New Year, and to us both a re-ce- 
mented Union, and an unimpaired Consti- 
tution. Yours truly, 

CiiAs. Reemelin. 



Steukenville, Jan. 9, 18G1. 

Dear Sir : Your favor of December 27th 
came to hand yesterday. I thought I had 
been careful iu explaining what I intend- 
ed by a tabula rasa. Tiie personal rights 
of each individual are inherent. He has 
them in a state of nature, and those of 
each individual are equal whether his 
physical organization be strong or weak, 
and each one, by a law of the same nature, 
is bound to respect the lights of others 
as he claims respect for his own from oth- 
ers. I surely did not say, nor mean, that 
these were swept off that the board might 
be clean to construct them anew. No 
community, however, or by whoever 
formed, could confer these except under 
peculiar circumstances, and then only as a 
restoration. 

The misfortune was, that iu a state of 
nature the strong from the viciousness 
of man's nature w)uld not respect the 
rights of the weak. Adam and Eve had < 
early and sad proof of it. 

The origin of government was doubt- 
less a means adopted for tte purpose of 
combining the strength of all to protect 
each against the vices of individuals. Can 
there be a doubt that those vicious individu- 
als were within the community thus asso- 
ciated for common defense, and that pro- 
tection against internal preceded protec- 
tion against external violence '? "' 

In communities there are, as you are' 
aware, two classes of rules or laws totally 
distinct from, but consistent with each 
other; the civil and political, loosely and 
indiscriminately spoken of as common or 
civil law or rights, and political law or 
rights. If I understand 3 ou, you seem to 
think what falls under the first head was 
originally imposed on the Colonies by 
foreign domination, and that they did not, 
at the revolution, disencumber themselves"^, 
from it. I do not so read the history of 
my country. The first colonists had, as 
I have betore said, the sole power of legis- 



16 



lation, sulvject to a veto in the Crown, a 
negative power ouly, whicli could orii^i- 
nate no laws, but which, when the loyalty 
or carelessness of a Colonial Legislature, 
had given the Crown an injurious advan- 
tage, enabled the Crown to maintain it. — 
The judges appointed by the Crown be- 
came astute in defeating by construction 
the plain intentions of the legislator, and 
not nnfrequently pronounced them en- 
croachments on the royal prerogative. 

The Governor, the vice-royal represent- 
ative of the Crown, had certain powers 
which he abused to dragoon legislatures 
into the royal views. These branches oi 
government originating from and controled 
by foreign power and exercised for the 
benefit, not of the people but the ruler, 
were what the revolution swept away, and 
left in their place, I again repeat, a tab- 
ula rasa to be filled by the people as they 
saw fit. They did fill it promptly in ev- 
ery case, assuming the titles of States, re- 
nouncing that of Colonies ; and so unpop- 
ular was the name that the term territory, 
from the French word territoire, was sub- 
stituted as the designation of our depend- 
encies. Now let us understand each oth- 
er. I do not assert, and have not assert- 
ed, that our ancestors (there is a good 
sense in which they are your ancestors as 
well as mine) had an entire tabula rasa, 
a recurrence to a state of nature on which 
to found new institutions, but only as to 
such parts as being founded by foreign 
power and exercised for foreign benefit, 
were swept away by the revolution.— 
These included no part of the laws by 
which the civil rights of the people were 
defined or protected, because no part of 
them existed by force of foreign enact- 
ment, but by adoption of known systems 
with such modifications assumed to each 
legislative body best adopted to the new 
condition of things. In some colonies the 
custom of Kent as to descents had been 
adopted. In others the law of primogen- 
iture became the rule. These are only 
cited as examples. 

You are no doubt right, so far as we at 
this distance of time and events can judge, 
in your better considered opinion as to 
Solon, Lycurgus and many other reform- 
ers. They did not found ab origine, they 
only remoddled. I would give much to 
know what were the materials they re- 
moulded. Every revolution sweeps away 
what is obsolete or unpopular, and creates, 
to that extent, a tabula rasa to be left so, 
or to be filled as the people may see fit.— 
Every revolution, my dear sir, leaves more 
or less tahulas rasas, according to the vio- 



lence of the change, to be filled up. Hap- 
py the people wlio hxve been as wakeful 
in guarding their r g its as our ancestors 
were. I have not spwken of after the rev- 
olution accomplished by the acknowledg- 
ment of our independence. Our ancestors 
never endured a state of anarchy, or the 
same thing, a state of nature, in any re- 
spect longer than the.y did a state of sleep. 
Probably the nearest approach to a com- 
plete tabula rasa since the days of Peleg 
when the earth was divided, will be found 
at the introduction of the feudal system on 
the rains of the Roman Empire by the 
Northern invaders. Here, again, I would 
give a finger to know what was the polity 
of those tribes in their native forests. In 
adapting themselves to their new condi- 
tion they certainly proceeded on the prin- 
ciple that all property was in the head of 
the tribe, and all service was due to him, 
and in return the duty of providing for all 
devolved upon him. The historian and 
the lawyer can equally trace by parallel 
lines the present relations between sover- 
eign and subject even in England, the last 
to adopt and the first to modify it, to that 
source. To this day when a subject is at- 
tainted of treason or dies without heirs, 
the estate returns by the strictest rules as 
a reversionary estate, not into the national 
treasury, but to the private domain of the 
Monarch. It was upon the same ground 
that the King granted out these broad 
countries as his i^rivate patrimony, not as 
you seem to suppose (a very mean legal 
tictionj ; at all events the substance dwelt 
in the form. Henry VIII. seized all the 
estates of the monasteries and nunneries 
on the same claim, because they denied 
the feudal dues conditions of the original 
grants, and the nation never received and 
never claimed a dime from any of the im- 
mense wealth derived from these sources. 
Hike to revert to these things. They place 
in strong contrast the 8imi)le and equal 
purpose of our free institutions where the 
Constisutions, State and National, each in 
its sphere, and the laws passed in pursu- 
ance of them, alone govern, and every 
man stands equal before them. 

It is undoubtedly true, and I have not 
intentionally said a word to the contrary, 
that as governments were originally insti- 
tuted amongst men to protect by the com- 
mon strength the weak against the strong, 
so stiU the repression of evil is of para- 
mount importance in the action of all le- 
gitimate authority to any positive good the 
public agents may promise themselves they 
can accomplish. 

Evil may and does present itself in many 



17 



different forms, and may we not by a slight 
change of position be brought to see that 
the action of the national authority, has, 
viewed from one stand-point, prevented a 
great evil ; and viewed from another, the 
same movement has accomplished a great 
good. Take the impending question as an 
example. When an energetic action on 
the part of the government has restored 
order and obedience to the laws, one draws 
a long breath and says, " Thank God a 
terrible calamity is averted." Another 
more buoyant by nature, exclaims " the 
Union is safe ;" "a great good is achieved." 
Now are not both right. 

You admit the unity of the General 
Government in its relation to foreign na- 
tions, but deny it as to its internal rela 
tions to the States and the people of the 
States. I claim that within the sphere 
prescribed to it by the Constitution of the 
United States in the enactment and en- 
forcement of laws in pursuance thereof, 
the authority of the General Government 
is mandatory ; it is a law prescribed by a 
superior and which the inferior is bound to 
obey, and that there is no superior or equal 
within the limits of the United States, 
whether an individual or a State, with 
right, power or authority to arrest its op- 
eration. Do you hold that there is? If so, 
what do you do with the second clause of 
the sixth article of the Constitution of the 
United States ? You concede coercive au- 
thority, but not to the extent generally 
claimed. Where do you find a limitation 
to that authority ? The authority to pun- 
ish treason must surely include authority 
to suppress that treason, and the force can 
only be graduated by the strength of the 
treasonable force. 

Again : Are those entrusted with the ad- 
ministration of the government invested 
with a discretion to sustain the govern- 
ment or abandon it to traitors, as they 
please ? See the President's oath ot office 
and his constitutional duties (not rights) in 
the Second Article. 

The law of a State, by her Legislature, 
or by a convention, commanding the Gov- 
ernor to commit treason against the United 
States, would be no more a protection than 
if it was resolved by a gathering in a mar- 
ket-house. Do you hold, as a lawyer, that 
it would, or, as a citizen, that it ought to be? 

States are recognized and in a subordin- 
ate sphere retained, in the Constitution of 
the United States. By our new State Con- 
stitution counties are recognized and have 
certain parts assigned them in the ma- 
chinery of government; the convention 
waa elected by county organizations, its 
o 



doings were ratified by the same forms. 
Did the counties make the Constitution? 
Can Hamilton county, therefore, when out- 
voted or overruled in a favorite piece of 
legislation, step out and set up for herself? 
The analogy is not perfect in all respects, 
bat in this point it is perfect. 

Tliere were good reasons why the citi- 
zens of each State should decide for them- 
selves, whether or not they would become 
a part ot the new nation, and also why the 
experiment should not be made with a less 
body than the union of nine States into 
one would make. 

But suppose, pro arguendo, the States 
formed the Union, and therefore, by some 
logic unknown to me. any one of them can 
dissolve it. Now, again, by the same logic, 
if the people formed it cannot any one of 
them dissolve it? 

I have not understood you as distinctly 
asserting the sequence that a State can, at 
pleasure, retire from the Union because 
the States formed it, but without it I see 
no practical importance in the question as 
yet presented— I can suppose cases. A 
citizen of Connecticut is indicted for trea- 
son against the United States, he pleads 
that the Constitution of Connecticut did 
not authorize the State to bind his allegi- 
ance to another nation. There is special 
pleading for you. Will you demur or take 
issue ? 

Truly yours, 

„ R. Marsh. 

Hon. C. Reemeun. 



Cincinnati, January 23, 1861. 
Hon. R. E. Marsh, Steubenville, Ohio. 

Bear Sir : In reply to yours of the 9th, 
I have no objection to have it understood 
that I agree to your views upon personal 
rights, and that I hold them generally cor- 
rect when applied to our States, if you 
would only always keep in mind the main 
point of my argument, to wit : the fact 
that our General Government has very lit- 
tle indeed, and should have still less, to do 
with questions concerning them, and that 
this business should be strictly confined to 
protecting the person or owner, as the case 
may be, as far as set forth in the Constitu- 
tion, in that legal status in which our Fed- 
eral Government finds him or them accord- 
ing to State law. Thus stated and ac- 
cepted by you, we may conclude this part 
of our controversy. 

I am also quite agreed to admit that the 
people of the States did, by the revolution, 
sweep away royal power and much of its 
law, so far as it related to royalty specially 
but I ask you also to admit that the colo- 



18 



nial law generally, and the then existing 
titles of real estate, owned hj private per- 
sons, whose sources were and are royal 
grants, remained intact. Furthermore, it 
is necessary to a clear conception of the 
question to add that the royal power and 
titles, not yet passed to private persons, 
over land and subjects generally, passed to 
the States and their people, and from them 
by special compact to the Federal Grovern- 
ment. Yea, more, it is true that the very 
legal fictions of the previous British and 
colonial law passed over with the titles 
and have force to-day. I insist also that 
the relations of persons, outside of their 
relations to the King, remained unaltered 
— and I here refer more especially to that 
old rule that a negro, once a slave, does 
not become free except by manumission or 
due course of statute law. Not a single 
negro exists now in our States who is right- 
fully free by the process and reasoning 
spoken of in the Chicago Platform, unless 
such negro was unlawfully imported or 
was an immigrant into the free States /row 
countries without slavery. On the other 
hand, all white men are free and are ever 
pronounced to be so. This was the law 
and the rule in the colonies, it is the law 
and the rule to-day. 

Now, to illuminate this subject in all its 
bearings, I must again add that such is not 
the law of Germany, England and France, 
for there all persons, black and white, are 
free, personally, but not politically, as we 
understand it. But why is the law such 
in the countries named ? Why not with us ? 
Simply because personal freedom has been 
established for all there and not here. Go 
to Russia and the law is as with us and 
perhaps worse. And in this distinction 
lies the main error in your party. You 
forget that the object of the Constitution 
of the United States, and especially of its 
bill of rights, is to ^^ secure " existing and 
not create new civil liberty, and to secure 
this existing freedom first, against foreign 
powers; hnt secondly, and most significant- 
ly, also, against the usurpations of the very 
Federal Government made by the Con- 
stitution. 

Sparta, Athens, Judea, Etruria, Eome, 
Carthage, Lusitania, Germania, were all 
free countries, for they had national inde- 
pendence and free civil institutions, yet all 
had slaves, and I cannot yield your idea 
that a country cannot be republican or 
free wherein there are slaves. I feel some- 
what tempted to enlarge upon this topic 
and to write you an essay on Moses, and 
Solon, and Plato, etc.; also to give you 
some facts about my primevally /ree coun- 



trymen in the forests of my native land at 
the time of Csesar and then of Charle- 
magne. I have lately had occasion to read, 
in our evening task, to my son, the facts in 
reference to those days, but what would it 
avail us ? The fact would simply become 
plainer that there may be very free and 
very good people alongside of slaves — yes, 
and very mean ones, too. 

For us the point is, that the people of 
our States when they united for a common 
government, did just as they did, that is 
to say, they reformed as far as existing 
rights and wrongs would let them, and of 
course they abolished monarchy, but they 
left the balance to the States and a certain 
specifically named portion to the General 
Government. They, in their generation, 
did a work of reform for which we should 
feel grateful, but they declined to reform 
too much, and it also deserves our grati- 
tude. Mankind calls their time an "^r«," 
but it is a mistake to deem it a tabula rasa 
on which to write entirely neiv institutions. 

No two periods of the world's history 
are alike, but from all we may learn the 
lesson I have set forth. In our country the 
revolution swept off British power and 
some false colonial law, but it left the foot- 
prints of the rights and wrongs of much of 
both. They are imbedded in our system, 
and of these British land titles and negro 
slavery are the most prominent. As to 
the latter, its abolition was left to the due 
process of State law, and in nowise was it 
made the duty or is it the right of the 
Federal Government to see that the so- 
called natural law or normal condition 
should retake effect. The same is true as 
to all other matters which rest not on 
grants of governments but exist ^er se. 

I have never denied that the public good 
should be the guiding star of public af- 
fairs, I have only gainsaid that proving a 
thing to be useful proves it constitutional, 
or demonstrating a thing to be morally or 
religiously right brings it eo ipse within the 
rule of the Federal Government. Hence 
you may consider everything right and 
useful as acceded to by me, after you shall 
have proven it constitutional. 

I repeat, the Government of the United 
States is not a sovereignty jper se ; it has, 
as a Federal Government, no inherent au- 
thority. Whatever powers it has is grant- 
ed authority and it may be taken away. 
None can add to its authority except the 
States that gave those originally granted. 
To hold otherwise is to subvert our whole 
Government. 

I know full well that ever recurring 
conflict between " authority " in power 



19 



and the " reason " for its existence. The 
first must claim its supremacy. This is 
well in the ordinary course of legal adju- 
dication or argument, but when the crea- 
tors of authority, the principal in our gov- 
ernment, the States and their people, 
claim to act for themselves, through them- 
selves, and by themselves, the agent (our 
General Government) cannot plead this 
granted supremacy. It pales as the light 
of the moon does before the light of the sun. 

Treason by a State ! Treason and cap- 
ital punishment in a situation of things 
when you must either hang all or forgive 
all ! How strange the idea, when viewed 
by the light of your reasoning about the 
revolution of the Colonies and the acts of 
the British Crown. It does almost look 
.as if we were about to borrow, for revival 
among us, not only the treason rulings of 
old England, but tliose also of the Bour- 
bons of France, and in addition thereunto 
the fanatic cruelty of the French republi- 
cans of 1791 -'2. I wish I had time to go 
into this subject at large, and to show 
how America has abolished the old royal 
allegiance ideas entirely ; but I write 
amidst the pressure of business, and 
hence cannot explain as fully my views 
upon this and other subjects treated by 
you in your letter, as I wish. 

I can only refer now to two matters 
more, spoken of in your last. Are you 
really serious in your argumentation about 
the words in the Constitution : " We, the 
people of the United States?" Do you, 
indeed, hold it to be a mere name ? Do 
you deny that it is a description of an ac- 
tual occurrence ? Crown lawyers, when 
pushed for authority, may use such argu- 
mentation but I hardly think you intend 
to. I await your further reply. 

Secetsion, for cause, sanctioned by the 
people in the highest form known to our 
law, is one thing ; sedition and insurrec- 
tion another. The first was the process 
of our revolution, and subsequently of 
the framers of the present Constitution of 
the United States ; it is the American 
mode of doing such things. That right al- 
ways existed, it exists now ; it never was 
and it never should be given up. Insur- 
rection is a totally different thing ; it is 
especially named and defined in tlie Con- 
stitution and its suppression authorized 
and regulated. 

I assert, most unequivocally, that the 
States and allegiance to them preceded 
that to the General Government, is before 
it, and survives it, and the Federal Gov- 
ernment may well be said to owe allegi- 
ance to the States and their people. 



It is of the atmost importance that in 
this matter of " secession " we use words 
with a fair understanding of their relation 
to the subject before us, and with due 
caution, so as we do "not employ terms de- 
scriptive of wrongs and crimes, such as 
unwelcome secession brings to exasper- 
ated minds. We must ever distinctly 
comprehend that the relation of our States 
and their people is not that of a subject 
to a king, nor that of a citizen to a sever 
eign. Secession is not rebellion, nor as 
already stated, an insurrection, nor sedi- 
tidn, nor a conspiracy, nor even necessa- 
rily a revolution ; neither is it nullification. 
It is secession, and I know of but two par- 
allel cases in European history — the seces- 
sion of Switzerland from the German Em- 
pire, and of Sweden from Denmark. — 
Now, in my opinion, it was not treason to 
sever Switzerland from Germany, nor to 
dissolve the Calmaric Union, and the evil 
doers, in both cases, were the rulers who 
forced secession upon States and their 
people, devoted to the very Union they 
separated from. Such is the historic judg- 
ment against the German Emperor, Al- 
brecht I., and the Danish King, Christian 
II. For five hundred years William Tell 
lives in the memory of the people ; for 
three hundred Gustave Wasa. These 
cases are given, not because they are Uke 
ours, for in each of these cases the seces- 
sion was from a potentate as well as from 
a union, but because they are similar and 
aid us in bringing our mind away from 
mere revolts, up to the real question be- 
fore us. 

Thus understanding ourselves, we may 
comprehend that, as in things generally, 
so there may be a right way of secession 
and a wrong way, a distinction we may 
as well extend to the preliminary steps. 
The right way is that pursued by the orig- 
inators of our United States Constitution, 
the wrong way, that by force before peace- 
able remedies are exhausted. So in the 
preliminary steps. Virginia and Ken- 
tucky took the right direction in 1797-8 ; 
South Carolina imitated the wrong way 
in 1832, and does so now. 

Next to distinguishing correctly between 
the right and the wrong of secession, 
is the understanding that there may be a 
proper and an improper mode of meeting 
the question by the Federal Government. 
That Government is bound to hear and 
consider the representatives of States and 
their people, and it has no right whatever 
to oppose efforts towards a settlement of 
difficulties which have grown up between 
these States and their people. On the 



20 



contrary, it is bound to do all in its power 
to bring the original parties to the Union, 
into such a train of considerate action as 
may enable them to heal controversies 
by the assemblage of deliberative bod- 
ies, composed of delegates of States, with 
full and sovereign powers. It must fre- 
quently happen in federal governments 
that the Constitution doe|i not cover the 
existing dispute, and in all- such cases it is 
wise as well as lawful, to bring the States 
inio action as the original parties to the 
the Union. Thus the Congress of 1786-7 
acted, and thus should the present act. — 
War upon States asking guarantees for 
their rights would be a crime to-day as it 
was in 1308 by Germany upon Switzer- 
land, and in 1520 by Denmark upon Swe- 
den. 

The words treason, disloyalty, and such 
like, when applied to secession are, there- 
fore, with us, misnomers. These terms 
are often proper from a king to a subject, 
but not from a Federal Government to the 
States and people composing it. A par- 
ent may call his son disobedient, but it 
•one partner were to speak thus of his fel- 
ilow partner we would all laugh at him. 

You will, of course, now ask me what 
wrong or crime secession is ? I answer : 
Secession, wrongly fought, is a breach of 
solemn compact between States ; a breach 
as much more heinous than the breach of 
a common contract, just as a violation of 
the marriage covenant is far more repre- 
hensible than that of a common relation of 
life. The magnitude of the interests in- 
volved, was recognized in the solemn man- 
ner in which the Constitution was made, 
and they have surely not diminished ; on 
the contrary, they have become momen- 
tous, and the man or State, or Federal 
Government, that will lightly approach 
the consideration of a state of things indi- 
cating a possibility of a severance of our 
Union, is madman enough to play with 
locofoco matches in a powder magazine, or 
mean enough to divorce himself from the 
mother of his children because she failed 
to cook him a good supper. Our Union is, 
let us ever remember it, not a common 
partnership, nor a mere treaty between sov- 
ereign States, neither is it a civil govern- 
ment like England or ^France. It is a 
" States Union " and not a " UniGn State.'" 
It is more than a league, more, for instance, 
than the Ionic Union of Greece, more 
than the present German Union, but less 
than the old Germanic Empire, and an en 
tirely different thing from the union of Ire- 
land, Scotland and England. 

A moat essential characteristic of our 



States Union is the clear correlative obli- 
gations of the States to the Union and the 
Union to the States, and again those of the 
States as sovereigns to each other ; and it 
is a most mischievous mistake to hold the 
Federal Government as the arbiter in set- 
tling the latter, or as the agent to redress 
their complaints of each other. That er- 
ror, of all things, is not in the Constitution; 
it comes to us by false construction. South 
Carolina has ruptured these relations ruth- 
lessly, while the course of the fathers re- 
cognized and established them. 

You perceive that I do not regard our 
Federal Government as the aggrieved par- 
ty in a secession movement, no more than 
I would the employees of a partnership in 
an attempted dissolution thereof. The 
States and their people are the original 
parties to the Constitution and the Union • 
formed by it ; they are its subject and ofc/ecf, 
and false secession ruptures the rights of 
States and people. They are aggrieved, 
theirs is the right and power of seeking re- 
dress. 

Sending Commissioners to James Buch- 
anan, or any other President of the United 
States, to treat on Secession, is a great 
wrong to the States composing this Union, 
for it is surrendering their sovereignty in 
a most essential point; but it is equally 
offensive for the General Government to 
take into its hands the redressof the wrongs 
of secession. Both the States proposing 
to secede and the Federal Government 
should call upon the States to deliberate 
upon a separation, if that shall finally be 
deemed best, or better to determine the 
conditions of a prolonged better Union. — 
The Southern States violate the Constitu- 
tion in forming a new confederacy, and 
they are placing themselves in a position 
which self-respect and high duty forbids 
the recognition of, however willing we 
may and should be, to recognise the origi- 
nal sovereignty of the States and their 
people, and however desirous it may be to 
meet them as sovereigns for consultation, 
deliberation and final action. Thus by a 
double error we are drifting away from 
the true way, which is to call the States 
together in their sovereign character in an 
assembly like that which made our Con- 
stitution, and not one like the proposed 
Peace Convention at Washington. The 
South has failed to do this, because its ob- 
ject is, I fear, dissolution, and the North 
avoids it because, I surmise, it is actuated 
by hatred. The leaders in both sections 
are not true Union men. 

I would be doing my holiest feelings in- 
justice, if I were to omit to say, that seces- 



21 



sion, whose object is dissolution and not 
reconstruction, is, in my opinion, a wrong, 
outside of the Constitution, for I hold it 
the moral duty of every true-hearted Amer- 
ican to labor for union ; not a union of 
sand, nor of petrified rock, but a Union of 
States, affectionately recognizing that they 
belong together, an eternal covenant of 
internal peace, and a combination for 
strength with a free developn ent of all 
the States ; a union bound together by ties 
stronger than force and better than com- 
pulsion. 

The foregoing will explain to you why 
I recognize the right of secession, when 
sought properly, and why I am against it 
when pursued improperly. It will also in- 
dicate to you why I am against the use of 
force by the Federal Government in such 
cases. I am in the condition of the part;- 
ner who is angry at his partner for want- 
ing to secede, but who is equally displeased 
at the clerk, who puts his nose into the 
disputes between partners, thereby aggra- 
vating our feelings and doing more than 
all else to dissolve our union. I want a 
meeting of the parties to the Union, and I 
want to exclude the meddlesome federal 
officials as well as the disunionists per se. 

There! may be an argument drawn from 
the oath we have to take, that we adopted 
citizens owe original allegiance to the Gov- 
ernment of the United States and second- 
arily to our respective States. Such ^ 
ground would be casuistry, and yet I am 
in no wise disposed to belittle my sworn 
allegiance to the United States and to the 
State of Ohio, for I cling to the Union as 
a whole, and I abhor the idea that I am 
likely to be made, by the act of others, a 
citizen of half a country or no United States 
citizen at all. The history of my native 
land is ever in my mind, and it is a deep 
sorrow to me to see in the events before 
me the proof, that our peoi)le here are just 
as foolish and fanatical as the German peo- 
ple were after the reformation and before 
the thirty years' war. How distressing the 
reflection, that we, who emigrated from 
Fatherland, should have gone to a country 
where, if there be union, there shall be, 
like*in the country we left, created a deep- 
seated cause of disunion, that cause being 
an unwillingness by the people of the sev- 
eral States to understand and respect each 
other's domestic institutions and peculiari- 
ties. That understanding and that respect 
is the first condition of Union, and woe 
unto him who first invited any of us to 
meddle with those peculiarities by drag- 
ging them into federal politics. 

I remain as ever, most respectfully yours, 



with my best wishes and affections for a 
preserved Union. 

Chas. Reemelin. 



Steuben viLLE, Jan. 31, 1861. 

Dear Sir : Yours of the 23d inst. came 
duly to hand. There are some parts of 
qqr subject which I think we have suffi- 
ciently examined. I am a little at loss to 
understand by what line you discriminate 
between personal freedom and civil free- 
dom. If you understand by personal and 
civil what I define by civil and political, 
we need not differ about mere terms as 
signs of i^leas. You will recollect that I 
have said, no government could confer per- 
sonal rights, in which I include in the 
broad and full sense of the phrase, the 
rights to life, limb, reputation and pur- 
suit of happiness, which last surely in- 
cludes the right to acquire, possess and 
enjoy property, with all the attendant 
rights, except as a restoration. The rea- 
son is obvious. They are originally God 
given, not man given. They must have 
been taken away justly or unjustly, but in 
either case by man, before man can con- 
fer them, and then, you see, it could only 
be a restoration. The convict in the pen- 
itentiary, who, justly convicted of crime, 
whether against the State or the United 
States, is justly deprived, according to the 
character of his crime, and if a murderer, 
of all, by one irreversible blow. When 
discharged from the penitentiary, haying 
paid the penalty awarded to his crime, 
would it not be a strange perversion of 
language to say that his jjersonal or rath- 
er his civil rights were bestowed upon him 
by the la iv as an original grant ? It seems 
so to me. He is restored to Avhat of civil 
rights he had before, nor more nor less, 
and has them by the old tenure. He need 
plead no law but God's law for exercising 
them. Not so as to political rights, which 
are sometimes taken away as a part of the 
penalty for crime. As they have their origin 
in, and result from society, so when once ta- 
ken away by law, the law of society must 
be produced to show a new grant. 

You err, my friend, in supposing the 
legal fiction, as you term it, (I repeat it is 
no fiction but reality,) is the same in this 
country as it was under the British King. 
It is entirely changed. I have sought in 
vain, such is the want of comprehensive- 
ness in our early historians, to find what 
was the law of escheats and forfeitures in 
our colonial days. Did they go to the 
Crown or the Colony ? In the absence of 
positive testimony I think they went to 
the Crown. If so, all was changed by the 



22 



first blow of the revolution. Escheats and 
the forfeitures of the tories, estates went 
not ta the Executives but into the State 
Treasuries. You think the laws respect- 
ing titles to real estate were and are un- 
changed. If you mean that our ancestors 
did not abolish titles derived from the 
Crown as their origin, I have said early 
that our ancestors never inaugurated anar- 
chy, chaos, agrarian law, or by whatever 
name confusion worse confounded may be 
characterized. 

They were a calm, thinking, considerate 
people. They took an observation of their 
position, not perhaps always very scien- 
tifically, and moved practically rather 
than theoretically. For the precedents of 
kings they had far less reverence than 
some of their posterity have in these days. 
In one case, where I trace my lineal ances- 
tors, they solemnly determined in popu- 
lar, not in representative council, that 
they would be governed by the laws of 
God, as found in the sacred scriptures, un- 
til they had time to make better, which, 
as I read it, meant more appropriate to 
their condition. 

The title to real estate in every State in 
the Union, except Louisiana, is controlled 
by statutes, as to all the three modes of 
passing title by contract, by devise and 
descent. In no case can the common law 
be cited to sustain a title to land. In 
Louisiana the civil law prevails. Of their 
statutes I am not advised. 

I intended to devote this letter to your 
idea that the United States is not a sov- 
ereignty. It will be well, before we defin- 
itively affirm or deny that the United 
States is a sovereignty, that we understand 
and settle between us what each means by 
a sovereignty, lest, when we have long 
argued, we find that we have been talkiog 
about two different things, or, what would 
equally embarrass us, only about two 
names, like the nominalists of the old di- 
vinity schools of the middle ages, from 
both which, good Lord, deliver me. 

By a sovereignty I do not mean a des 
potism. I pray you do not imagine that 
I confound them. 

There is not in my thought any necessa- 
ry connection between them. True, a des- 
potism may be and usually is a sovereignty. 
A limited monarchy may be, and usually is, 
a sovereignty. A Republic, however tree, 
and however limited the authority of those 
who administer its affairs over its own citi- 
zens, if they represent the nation, the Repub- 
lic, in its intercourse with foreign nations on 
an equality with other independent nations, 
and it it owes no subordination to any 



other nation, is, in my view, not only nom- 
inally, but substantially, a sovereignty. — 
Now, how stands the United States in these 
respects ? Do not the United States de- 
clare war and make peace *? Can a State 
do it ? I am speaking under the Constitu- 
tion. Do not the United States rightfully 
raise armies, build and equip navies? 
Have the States authority to do so ? Have 
not the United States authority to admit 
and naturalize foreigners, or to refuse them 
such privileges as it may deem most ad- 
vantageous to the nation ? Can the States 
do it or object ? Foreign nations have 
sometimes attemptod resistance to our pol- 
icy in drawing away their subjects. I 
imagine the Emperor of Austria, despot 
and sovereign as he is. will not soon forget 
the contemptuous sneer with which Web- 
ster replied to some arrogant language, that 
the dominions of the house of Hapsburgh 
were not more to the United States than a 
patch on a man's elbow. I should like to 
hear of the ruler on this ball who would 
dare deny the Ambassador of the United 
States what diplomacy demands for the 
minister of a sovereignty. We should 
soon learn whether there are in this coun- 
try any who would contend that this na- 
tion did not hold as high a place amongst 
the nations of the earth as the Autocrat of 
the Russias, or even the Brother of the 
Sun and Moon. Cannot the United States 
as^ sovereignty when at war conquer for- 
eign territories, or even nations, and rule 
them as tributaries and conquered provin- 
ces or compel their cession by treaty with 
as ample authority under the law of na- 
tions as France, Enghmd or any other na- 
tion cau do ? To turn to the interior, the 
domestic authority — What attribute of 
sovereignty has been withheld by the Con- 
stitution from the United States? Read 
Sections 8 and 10, Art. 1, and tell me what 
distinctive attribute of a sovereignty has 
been withheld from the United States or 
left in the hands of the States? Then read 
! Article 6 and tell me how the oflicers or 
citizens of a State can evade it. If they 
have taken an oath to obey the Constitu- 
tion ot the United States what do they do 
with it ? If not they are not legally qual- 
ified as such officers and are no better than 
any other unauthorized collection of gen- 
tlemen. Sovereignty is not an inherent 
power — never was and never will be. It 
is granted or seized by force or fraud. Is 
it any less sovereign when granted by those 
entitled to grant it, to be exercised for their 
defence, use and benefit, or any less enti 
titled to command the reverence, respect 
and obedience of the citizens, than when it 



23 



is forced upon a reluctant people by vio- 
lence or saddled upon them by the seduc- 
tive arts of treacherous demagogues. If 
80 there is an inherent weakness in the 
very principle of free institutions, never 
before pointed out, which renders them im- 
practicable, viz : that obedience is not due | 
to constitutions formed by the peeple them- 
selves, because so formed. Treason by a 
State, you exclaim. The law prescribes 
hanging for treason — perjury is always in- 
volved in the crime. A State has no body 
to be hanged nor soul to be damned. A 
Governor of a State has both and commits 
treason against the United States in his in- 
dividual private capacity as a citizen of 
the United States, not ex officio, nor as a 
citizen of a State. Did not every citizen 
of the United States resident in South 
Carolina, who joins in this enterprise, de- 
termine to commit treason against the 
United States before they met together to 
consult how they could most safely do it? 
The Constitution has defined in unmistaka- 
ble language what shall constitute the 
crime of treason against the United States, 
and you mistake not only myself individ- 
ually, which would never give me a mo- 
ment's concern, but the free States' popu- 
lation, when you suppose they would ex- 
tend the plain language of the Constitu- 
tion, by implication or construction, to em- 
brace any one who is not strictly within its 
letter. IBut let no enemy lay the flatter- 
ing unction to his consciously guilty con- 
science that he can obtain so narrow and 
perverted a construction that a State law 
shall turn aside the sharp sword of justice 
from even the highest dignities of a State. 
Indeed I think the man who by the influ- 
ence of his local position has the art to se- 
duce thousands of his confiding fellow cit- 
izens into crime is a most fitting subject to 
be made an example. The unfaltering fall 
of punishuient on one such would do more 
to correct public feeling and curb the wick- 
. ed ambition of demagogues than the sweep- 
ing away of 10,000 men, three-fourths of 
whom could not read and write, on the field 
of battle. 

My good friend you despair of the Ke- 
public because as you view it, with the 
attributes you allow it, you cannot see in 
it any authority or strength to vindicate 
or maintain its own existence against in- 
ternal assault for a day. If I viewed it 
in the same light I should never imagine 
that I had a country worth a moment's 
thought, or capable of warming for a 
second the bosom of a patriot. 

How can there be a patriot without a 
country ? I cannot conceive. Correct, my 



dear sir, your ideas of the Constitution of 
the United States. See under its broad and 
benevolent folds one people assembled by 
voluntary action, cemented by all possible 
human ties, strengthened in rights and 
duties, by the highest divine sanctions 
man can invoke. Then look and see a 
small part of the people working by art- 
ful sophistries to destroy the ties which 
bind the nation together, then laying 
hold by violence and treason, and striving 
to tear down the vast fabric of the nation 
and strew the encumbered earth with its 
ruins, and ask yourself, are these men do- 
ing what they have a right to do ? Is this 
my country I Do I love it ? Would I de- 
fend it in a just cause ? 

That, my friend, is where I stand. I 
say those men, the moment they assume 
an armed organization to set at defiance 
the authority of the United States, they, 
and all who adhere to them, giving them 
aid and comfort, are traitors. I care not 
for their numbers, nor their forms of or- 
ganization, nor for their pretexts. Treason 
yet never lacked a cloak. This is my 
country, a great and hitherto a glorious 
nation. I am proud of it, I love it, I owe 
it allegiance. I will defend its unity, its 
integrity, with all a man owes his country. 

An American citizen in going thus far, 
whether native or adopted, makes no 
boast. He ofiiers no gratuity, no benevo- 
lence. He offers nothing but what his 
country has a right to presume he stands 
prepared to render at her call, a simple 
duty. Observe, my friend, how our opin- 
ions control our actions. How erroneous 
ideas paralyze the arm of the patriot, and 
whilst his heart is bursting with mingled 
shame and rage at the destruction of his 
country, compel him to stand and look on 
in helpless imbecility, only in intention 
less dangerous than treason. Do you 
think if the people in Virginia, Tennes- 
see, Kentucky, had not been at an early 
day sophisticated by the political party 
resolutions of 1798 and 1799, which have 
been like a church bell regularly rung, 
until half the people in those States think 
they are a part of the Constitution, that 
they would now be standing and proclaim- 
ing under the specious guise of resisting 
the coercion of a State, that the United 
States shall not suppress open avowed 
treason arrayed in arms against the na- 
tion? They are seduced in the madness 
of the hour by sophistries which dare not, 
as you see in the South, face the light of 
the doctrine of Jefferson, that error of 
opinion may be safely tolerated, whilst 
reason is left free to combat it. They 



24 



have silenced reason and will permit pas- 
sion only to be heard. Your letter is a 
very suggestive one, and although mine is 
unreasonably long, I have not touched all 
your points. 

Do you not unconsciously sometimes 
fall into the ideas of the German Empire, 
where, as history teaches us, to put a State 
to the ban of the Empire, was no novel or 
rare occurence ? 

This nation had a different origin, and 
is constructed upon a different and totally 
diverse model. In fact, our ancestors did 
not work from any pattern, they drew from 
themselves, and constructed an original 
fabric capable of resisting the tooth of 
treason and of time, which will grow 
brighter the more it is chased. 
Yours with respect, 

R. Marsh. 

Hon. C. Reemelin. 



Cincinnati, Feb. 2, 1861. 
Hon. R. Marsh, Steubenville, Ohio. 

hear Sir : Your esteemed favor of the 
31st ult. is before me, in the neat letters of 
a lady's hand, and I feel under great obli- 
gations to Mrs. Marsh for the trouble our 
correspondence causes her. Her kind as- 
sistance in this matter proves that you have, 
like myself, a wife, who does not study so- 
ealled " women's rights," nor does keep 
asking herself how much she is bound to 
perform in the joint burthens of life, or 
else you would have to select a copyist 
from the more contentious sex. I hope 
you do not ask Mrs. Marsh to read my let- 
ters, for then I owe her, as well as you, an 
apology for bad writing, hasty effusions, 
and I fear sometimes, too, bad spelling, so 
you need not fear that I fihall myself play 
critic on these points. 

I have now again a little more time, 
and hope to express myself clearer than 
previously. I did not mean, in my last 
letter, to draw a very disquisite line of dis- 
tinction between civil and personal free- 
dom, though there is a difference between 
the mere freedom of person and the civil 
liberty established in a government, and 
again is there a political freedom, as well 
as a liberty for entire nations. A man 
may have personal freedom, such as eman- 
cipated serfs, and yet there may not be 
civil liberty ; and there may be civil lib- 
erty, as in Italy and Spain, and yet no po- 
litical liberty, such as the general right to 
vote; and there may be all these as in Ire- 
land, and yet they have not national lib- 
erty. What I purposed, however, by the 
remarks to which you take exception, was 
uerely to bring to your mind again and 



again, that rights of persons and things, 
such as husband and wife, parent and 
child, master and servant, debtor and cred- 
itor, buyer and seller, voter and govern- 
ment, the tenure of property and other 
of the chief affairs of life, which go to 
make up the varied status of liberty lor 
the inhabitants of these States, were not 
and are not, placed within federal rule, 
and that even in its limited judicial au- 
thortity, as between citizens of different 
States, our General Government must de- 
cide by State law. 

The Government of the United States 
must, when its limited athority comes in 
contact with these several relations, pro- 
tect them as it finds them. It was not 
and it cannot be the fountain of either per- 
sonal, civil or political freedom ; it secures, 
mark the word, national independence 
and liberty. The word liberty, in the 
preamble of the United States Constitu- 
tion, does not refer to the personal, civil 
or political liberty of the inhabitants of 
the States, it refers to international liber- 
ty, ^nd the bill of rights in the Constitu- 
tion does not relate to the establishment or 
restoration of rights of person or proper- 
ty to the people of the States, it is intend- 
ed to prohibit infringements thereon by 
the Federal Government. The United 
States Constitution accepts in such mat- 
ters the " defacto^^ status in a State as ex- 
isting " de jure,^^ and is herein subordi- 
nated, and very properly, to State law, to 
which, and not its oivti, it looks to ascer- 
tain this status. 

I contend that the States and the people 
thereof, purposely and wisely withheld 
from our General Government all author- 
ity to fix or change the personal status of 
the persons, under State authority, by its 
fiat, and the word " perpetuate " liberty, 
refers to National and State independence. 

I agree with you fully, that the rights 
of man are God-made, and not granted by 
government, and I have always looked 
upon all liberty given by government 
with the same suspicion that a Hungarian 
views the Constitution given his country 
by the house of Hapsburgh. Whenever 
our States and the people thereof shall 
get their liberties from our central Gov- 
ernment, it will be a spurious article, such 
as no wise man will desire, and no true re- 
publican will accept. 

Your other position, that personal 
rights, " when once taken away by law, 
the law of society must be produced to 
show a new grant," is, though I dislike to 
admit it, also true, and hence my asser- 
tion 18 certainly correct, that the status of 



25 



every human being in the United States, 
so far as the General Government can ef- 
fect it, remains what it is by State law un- 
til changed by the due course of such 
(and not federal) law. No .flave be- 
comes free, no free man a slave, 
through federal authority, and according- 
ly I deny the " normal condition,'" spoken 
of in the Chicago Platform, as a federal 
norm. It is abstractly true, but when ap- 
plied to our federal system, absolutely and 
mischievously false. 

As to the tenure of real estate, I again 
aver that it was not essentially changed 
by the revolution. The titles, before it, 
came from the Crown, and these titles still 
exist. Since, the States granter^ certain 
lands to the United States, and the Fede- 
ral Government has acquired some by pur- 
chase, and these lands are sold or granted 
to our people. The starting point was and 
is a grant, and I repeat, as an indisputa- 
ble-fact, that the royal gi'ants to Penn's 
heirs are now respected in Pennsylvania, 
even to land which at the revolution, was 
not reduced to possession, and this is true 
in other States, also of other estates, such 
as the Rensselaer in New York. The 
ground I have taken is, therefore, true, 
that the legal status of persons and things 
were, when our present Federal Govern- 
ment was made, unaft'ected either by the 
Declaration of Independence or the Aiti- 
cles of Confederation, or the present Con- 
stitution, especially as to real estate and 
slaves, and only the Royal governments 
and their officers and the allegiance claim- 
ed by them was changed. It has ever, and 
does now, require, to be a rightful action, 
either a voluntary surrender or manumis- 
sion or other due course of law, to free a 
slave. You are indeed correct when you 
call a people who thus respect rights of 
proper fg which are repugnant to their feel- 
ing^, as they are to mine, " a calm, think- 
ing, considerate people." You most just- 
ly exalt their practical good sense. They 
were free and know ^vhat freedom is. 

Allow me, however, to ask whether our 
children will say as much for those of us 
who, admitting the legality of slave tenure 
in the States, insist that when a negro, 
thus legally a slave, is brought upon soil 
where no valid prohibition to take him is 
in force, nor law declaring slaves free 
exists, that this slave becomes free, the 
soil being the common property of all the 
States in this Union. Did the forefathers 
so declare ? No ! They passed the Ordi- 
nance of '87 by compact with a State, State 
authority being the source of power in the 
premises. They, on the other hand, re- 
4 



frained to enact a similai law for the South- 
west, simply because North Carolina and 
Georgia refused to grant the requisite ju- 
risdiction. Slaves taken into Tennessee 
and Mississippi remained slaves, while thos© 
taken to Ohio became free. Our ancestors 
were indeed wise thus to respect legal con- 
ditions, and all our generation should have 
done and do, is to profit by their example, 
and not to try to make persons free surrep- 
titiously by inductive philosophy, when 
scripture, usage and the Constitution for- 
bid Federal intermeddling. 

I cannot agree to your views as to the 
seat of sovereignty in our Union . Its foun- 
tains are the States and the people thereof. 
They granted certain attributes of sover- 
eignty to their Federal Government ; toJiat 
they did not grant is still with them. You 
asli, " what distinctive attribute of sover- 
eignty has been withheld?" I answer 
many ! Look into our Ohio statutes and 
then into the Federal statutes, go into a 
State court and then a Federal court, and 
you will see at once the vnde distinction. 
The United States Government has enumC' 
rated, granted, attributes of sovereignty, 
the States and the people thereof have the 
inherent unenumerated residue. The King 
of Great Britain is " a sovereign " person- 
ally, but the sovereignty of the Empire is 
in king and parliament. The Emperor of 
Austria is a sovereign person, but there is 
a sovereignty in Hungary, Italy, Bohemia, 
etc., which is outside of the person that 
may be the ruler. Receiving ambassadors 
is an attribute of sovereignty, but the es- 
sence of the thing itself is that final power 
and authority whose decision alone can 
finally and conclusively determine the very 
framework of all government. The people 
of these United States have, with consum- 
mate wisdom, refused to grant, either to 
the Federal or the State governments, all 
their sovereignty. They have given some 
to the Union, some to the States, but the 
very fountain, the ''reversions" and the 
''remainders " are yet with them.. These 
peoples have no sovereign, they have cre- 
ated no sovereignty over themselves, they 
have not even recognized a sovereign peo- 
ple of the whole country. There are sov- 
ereign peoples in this country, but no one 
sovereign people. Supreme authority with 
enumerated objects they have erected, but 
such supreme authority is not the sover- 
eignty of our land. Inlierent, inalienable, 
a.nd final power is essential to sovereignty. 
Conferred power is not sovereign power ; 
it is the agent of sovereignty. The United 
States Government represents our sover- 
eignty to foreign nations. They have no 



26 



right to question it, but the States and the 
people thereof may, and if they should do 
it and abolish their Federal Government, 
no foreign nor home government has a 
right to dispute our action. As we did 
with the Articles of Confederation, even 
'eo we may do with the present Constitu- 
tion, and foreign nations must send ambas- 
sadors to wliatever government we point 
out to them, as tlie type of our sovereign- 
ty to them. 

A sovereignty can not lawfully be abol- 
ished : that of our States and their people 
cannot ; that conferred on the United States 
Government can. Sovereignty cannot be 
taken without consent ; in oar federal syft- 
tem we have expressly said that this may 
be done, without asking Congress, by the 
mere action of State Legislatures. Sup- 
pose a convention were called by the States 
and that convention were to abolish our 
present United States Government, which 
of the two sovereignties would outlive the 
other •? That of the grantors survives all. 

There is no "inherent weakness in the 
very principle of free institutions," as you 
seem to fear. There is sovereignty enough 
and to spare in our institutions, and you 
mistake the point at issue between us en- 
tirely if you think that because original 
and full sovereignty is denied to our Fed- 
eral Government, that therefore the sover- 
eignty of republican institutions is de- 
nied." Is there less sovereignty in the 
United States themselves because that sov- 
ereignty is not in the United States Gov- 
ernment.' Has Great Britain less sover- 
eignty because her wise jurists deny that 
its sovereignty is not in the King alone ? 
Our General Government has all the at- 
tributes it needs to represent our sover- 
eignty towards foreign nations; it needs 
none so far as we are concerned, for in that 
direction the States and the people thereof 
have the sovereignty itself. This is not 
claiming sovereignty for despotism ; on the 
contrary, it is defending our sovereignty 
against the assumption of despotic powers 
by the General Government, for, as I have 
again and again point€d out, the sovereign- 
ty of this people once yielded to the Gen- 
eral Government as the law in the premises, 
and liberty is forever departed from this 
land of ours. 

The United States Government raises 
armies, levies taxes, etc., as enumerated by 
you, ijccause the Constitution gives it the 
authority to do so ; if it did not it could not 
do so. This elucidates the marked dis- 
tinction between the United States Gov- 
ernment with its granted attributes of sov- 
ereignty and full sovereign power. Orig- 



inal sovereignties have a priori all legiti- 
mate! authority, the ^'■sumirmm imperii," 
and they lack only that which is expressly 
yielded to others; our Federal Govern- 
ment is never in and of itself the supreme 
majesty, for its laws are supreme only if 
passed ^'in pursuance of the Constitution.''^ 

The question arises, therefore, who is the 
final judge, whether the General Govern- 
ment has 80 passed its laws. You will at 
once say : the federal courts : I say, with 
equal promptness, the States and the peo- 
plc thereof. The agent is never the final 
arbiter of his own powers. 

1 answer, that in all laio cases that are 
properly brought before our federal coiuts, 
these courts are the constitutional judges, 
but never as to those fiinal settlements and 
adjustments of questions ot political rela- 
tions, such as the principals alone, the 
States, can determine with their sister 
States. Our forefathers made the Federal 
Government as strong and as binding as 
seemed good unto them. We may tvish it 
stronger, but can't get our desires by con- 
struction, because the General Government 
is not the fountain of its own powers. Of 
this some complain, but 

"First, if thou can 'at the harder reason gaess, 
Why formed no weaker, blinder and bo less." 

I was qnilie cai-ried away by your patri- 
otic fervor for our National Government, 
and if my heart swayed my judgment, 
would have rushed with you into a violent 
passion, but I am a States Rights Demo- 
crat and have got to keep cool. Not every 
resistance to government is treason, nor is 
every support of government patriotism. 
My great grandfather went to prison for 
months rather than vote, as a representa- 
tive of the people, unjust taxes. Some of 
my relatives were imprisoned lately for 
constructive treason, as the Crown lawyers 
called it. I have sprung from a town for- 
merly a free hanseatic city, that, as the 
chronicles of it, which I read again and 
again, inform me, was noted, even centuries 
ago, for its obstinate resistance to federal, 
imperial and hierarchical arbitrary power, 
and you must not blame me if I am a little 
shy of your doctrines of treason, and if I 
do not see as quick as others, the rebel in 
him who resists an undue exercise of au- 
thority, and if I interpose that a government 
may commit treason against a people, as 
well as a people against a government. I 
do think that the world has oftener gained 
than lost by blocking the ways of power, 
and that a recuiTence to first principles is 
always useful. 

I have already instanced to you the up- 
rising of Sweden under Gustave Wasa, 



27 



.igainst tile King of Denmark, uuder the 
CaJmaric Union. The traitor there was 
thj9 King. So in tho so called revolts of 
the Italian cities against the Emperors of 
Germany, it was not treason in any true 
sense to fight for Italian independence. — 
Neither was it treason in Switzerland or 
its mountaineers to secede fi.'om the Ger- 
man Empire. 

The cases are not cited because they axe 
strictly analogous with our present eitua- 
ation : on the contrary. South Carolina 
staggers me with its hot haste and precip 
itous action, and it dilates my sense of 
justice the more because it overstrains a 
right acknowledged in our Declaration of 
Independence, and sanctioned in the very 
formation of our present Constitution. 
I have often thought that our President, 
Mr. Buchanan, and Congress, too, should 
have taken steps ere this to lead into safe 
and legitimate channels the movements of 
the South, and so prevent civil war ; but 
what are my wishes when those in power 
are blind and do not see the plain path 
which the fathers followed so safely under 
similar circumstances. Things are surely 
going wrong, as they always do when mis- 
understandings are lelt to grow into ani- 
mosities, and political strife into hate. 
But you ask me whether I am in favor of 
hanging, as a traitor, him who, in obedi- 
ence to the fundamental law of his State, 
resists the Federal Government ? I an- 
swer, no ! When a State has acted in the 
highest form known to our law, a conven- 
tion asked for and chosen by the peoi)le, 
a coBiiict arises unavoidably under our 
double allegiance, which takes from a de- 
cision of a citizen who concludes to obey 
his State under such circumstances, that 
taint of guilt which lies in deeds of a dif- 
ferent stamp. With us, in contests be- 
tween the General Government and the 
States, there is in every man's bosom a 
conflict of so harrowing a nature as to de- 
mand pity, rather than punishment, from 
those whose eiTors have brought on this 
conflict, and whose high duty it was to 
.save the citizen from such reflections. To 
hang a man, thus placed between two of 
the deepest sentiments of his heart, his 
love of his State and his reverence for 
the Union, would be murder most foul, 
as it would have been inhuman and bar- 
barous to have hanged Washington. — 
Where it is hard to tell whether it is a 
mere rebellion or a civil war, it is well to 
be unusually circumspect in our reasoning. 

You are in error if you think I am bi- 
ased in favor of ideas connected with the 
German Empire. I see, very well, the 



differenoe betw een resistance to an Empe- 
ror and that to a regular popular election. 
But seeing the dilfereiioe makes me fair in 
my judgment to those who do not see it : 
for after all, the difference is only in the 
degree of forbearance due. We should, 
for instance, be slower iu our thoughts 
and actions when oppo.sed to the decisions 
of our fellow-citizens, and less ready to 
believe them wrongly intended, than we 
would be of Kings and Emperors ; but 
whenever a fear of wrong has ripened in- 
to a conviction that there is a settled pur- 
pose to violate the rights of States or their 
people, and there is no common arbitra- 
ment provided, then the conflict above 
spoken of is inevitable in the citizen's 
heart, and all I can .say is, that blame then 
lies primarily on those who have brought 
about such conflicting feelings. The his- 
tory of my native land is full of such con- 
flicts ; I have, in reading it, always felt 
horrified at the execution of the disputants 
of each other, and I have always rejoiced 
at the exhibition of the spirit of mutual 
forgiveness in Emperors, nobles, clergy 
and people, for evidently in all these 
cases all were, in a certain sense, right, 
and in another wrong. Do you blame me 
if I see our affairs by the light of the his- 
tory of my native country ? That teaches 
me that he who does not love his local 
home cannot properly love his entire 
country, and that all national patriotism, 
to be right, must have its root in local at- 
tachment. Neither should override the 
other, both should co-exist. 

Such, if I may presume to judge, were 
the double feelings of the framers of our 
Government. They loved their States and 
their Union, and they knew no patriotism 
that would make them hate their own 
homes. They acted by the light of his- 
toric right and knowledge ; God bless 
them for it. 

I do not share your condemnation of 
the resolutions of '98 ; Virginia and Ken- 
tucky were then right under the lead of 
Jefferson and Madison, as they resisted in 
a proper way federal usurpation. Would 
that southiern and northern statesmen, in 
our day, had studied well their exampla- 
In them is recognized the final right to 
rule the Federal Government into a sub- 
mission to the Constitution, but in them it 
also asserted the duty to do it by appeal 
to the sister States, and to a use of all the 
peaceable remedies given by tho law oH 
the land. They fix the sovereignty of the 
country in the right spot and forbid all 
unlimited submission to federal authority. 
They form, in my opinion, the true expla- 



28 



nation of the real objects of our General 
Government, and under them we can 
avoid the two extremes of our system, 
centralization and anarchy. The first 
named is always oar greatest danger, be- 
cause we have States, counties, etc., to 
keep us from entire anarchy. 

You refer me to a debate between Web- 
8ter and Calhoun. I have read it and 
agree with neither fully. The first makes 
out of a Federal Government, by construc- 
tion, a civil Government similar to Great 
Britain, exactly what Hamilton wanted 
in plain language, and what the fathers 
refused. The second tries to unloosen the 
ties of the Union and make it incoherent. 
Jackson gives us the golden mean in his 
Farewell Address ; with him I have stood 
for a quarter of a century, and with him I 
stand, still 

It is a great misfortune to the North, 
that our altogether greatest mind should 
have been tainted by great physical pas- 
sions and by a want of truth to great prin- 
ciples. Webster was moraUy impure. — 
Calhoun was pure as a private citizen— he 
was inflexible in his principles. His at- 
tachment to his section of the Union, over- 
shadowed, however, too much, his love of 
union. And yet he was the greater states- 
man of the two, and if it had not been for 
peculiar events, would have become the ' 
teacher of a whole people instead of being 
that of a half only. Both were great men, 
the debate you mention shows it, they were 
giants. In our day we have pigmies. 

You perceive we have at last got to the 
several sources of our political opinions, 
and apart at the outset we remain apart, 
batwe differ harmoniously,if you will allow 
the expression ; that is to say, we agree in 
our best wishes for the country we live in, 
but we differ as to the mode of govern- 
ment by which our happiness is to be work- 
ed out. You live in and are attached to a 
government which, if it were carried out 
as intended by its framers, is really not to 
your notion. You desire, therefore, to get 
by construction what is in fact not there, 
and no election result upsets your equa 
oimity enough to throw you out of your 
republican balance. This is commendable 
patriotism. I fear we Democrats have not 
equal equanimity, when we shall, under 
the incoming administration, have to wit- 
ness what we must regard as violations of 
the Constitution. We do not know how 
to bear with due patience an administra- 
tion radically at war with our views of the 
Constitution. We regard our ideas of con- 
stitutional right as the true ones by the 
light of oar history and impassioned re- 



Jiection, and hence regard an administra- 
tion as illegitimate which tries to carry out 
false principles, as we understand it. This 
feeling is not as bitter North as it is Sout^ 
simply because our domestic interests are 
not yet the subject of federal politics. In 
the South Democrats are more vehement 
than Whigs, because, besides their common 
hatred of abolitionism, they detest also the 
impending general federalistic tendency of 
the incoming administration. If, then, I 
admit our less grace to submit, and that 
this is even more true of the Southern 
Democrats, you will, I hope, also conccede 
that there are peculiar circumstances ex- 
plaining the difference. 

We are not so used to being in the min- 
ority as you are, and the minority is not 
one in fact, only iu law. You and the 
country have cause only to complain of 
Democratic malfeasance in office, we Dem- 
ocrats fear actual radical changes in the 
Constitution. A single law, in violation of 
the Constitution, like a national bank or a 
tariff, takes ten-fold, yea, a thousand-fold, 
from the people what a defaulter does, 
and the difference often is only between 
taking pennies illegally, technically speak- 
ing, and securing so-called legal privilege 
to absorb dollars. Both are wrong, and I 
have never hesitated to oppose them. 

In the South their fear of constitutional 
violations is magnified by apprehensions, 
for their local institutions. You complain 
of their harsh treatment of American citi- 
zens temporarily sojourning, or residents 
among them, who hold different views 
from themselves. The complaint is well 
taken ; but allow me to suggest that po- 
litical, like all other liberality, is a queer 
quality of the human mind. All are will- 
ing to discuss theh' neighbors' wrongs, 
none their own. We, in the North, are 
ready, indeed, to talk of slavery, but think 
of an atheist addressing a Presbyterian 
Church of ours, or a temperance lecturer 
before an assemblage of distillers or Ger- 
man coffeehouse keepers ! I think you 
will agree with me that liberality is a vir- 
tue easy practiced on neighbors' foibles, 
but very rarely when our own cherished 
notions and interests are at stake. As long 
as the agitation does not endanger these it 
is permitted, but whenever it does, kings, 
priests and people want to stop the agita- 
tion they don't like. I wish I could say 
that you and I are entirely free from thiis 
propensity, but I cannot; and though I 
will not justify the bitter wrongs done by 
Southerners to Northern anti-slavery men^ 
I must admit that their action is liamaife, 
nature. 



29 



My best wishes for .your uatal day. May 
you live many more and all in a united 
land ; and may you and I agree to differ, 
but unite in a determination to preserve 
the Constitntiou intact. 
Traly yours, 

CiiAs. Kkemklin. 



Steubenville, Feb. 12, ISGI. 

Dear Sir : Your favor of February 2d is 
before me. Is it owing to the dift'erence 
in the idiomatic characters of our two ver- 
nacular languages, although branches from 
the same Tuetonic stalk, or from some 
other cause that we so often misunderstand 
each other? I consider in the sense in 
which they enter into our discussion, nat- 
ural and civil rights as identical, and they, 
I have distinctly said, are God-given and 
not man-given ; and I have as distinctly 
and emphatically said that man cannot I 
give them as an original grant, but only as 
a restoration after the man has been de- 
prived of them. I put the cass of a man ' 
sentenced to the penitentiary for crime. ' 
His natural rights are suspended, but re- 1 
stored when he has paid the penalty. But | 
his political rights to vote, to be a witness, I 
to hold office, for example, are not God- ' 
given but man-given, resulting from the 
organization of society, and regulated, con- 1 
ferred or withheld by it. Whenever they ; 
are taken away, as a part of the penalty < 
for crime, the deprivation is made per- ! 
petual and is not abrogated by the termina- 
tion of his term of imprisonment, nor by 
any other mere negative. It requires a ' 
positive, an affirmative act, a pardon, be- 
fore he can again exercise them, which, 
considering whence they originally came, 
that they were taken away without limit 
of time, that they come again from the 
same source, from man. I consider it a new 
grant — certain it is, it is not a restoration 
in the same sense in which the 'recovery of 
a God- given right is a restoration. T need 
not amplify on this. 

You insist that the United States Gov- 
ernment has nothing to do with the status 
of personal freedom of its citizens beyond 
protecting that status fixed by State laws, 
accepting the status dc facto fixed by State 
laws as existing de jure, and that the 
United States is subordinated to the States 
in determining thereon. I deny your posi- 
tion, as stated, entirely. No State can 
fix or change the status of a foreigner 
emigrating to this country, make 'him a 
citizen or prevent his becoming one ; per- 
mit or prevent his becoming a citizen of 
the State. He becoming a citizen of the 
State of his domicU by force of his natur- 



aUzatiou under the laws of the United 
States and not converse. The United 
States is boimd to see (Art. 1, Sec. 2) that 
a naturalized citizen enjoys all the privi- 
leges_and immunities of a natural bom 
citizen in whatever State he may choose to 
locate. And this would be equally true 
from whatever clime or race the emigrant 
might come, whether Ireland, Germany, 
Russia, Hindoostan, China, Japan, or even 
Africa, the Constitution liaving no restric- 
tion on the authority. 

But we have seen that personal freedom 
is but one of the natural rights, God-given, 
which man has. Liberty comprehends 
much more than the mere right of personal 
locomotion or freedom. It includes the 
right to pursue his own happiness, and in 
so doing to acquire, possess and enjoy 
property. In a state of nature he would 
enjoy all these dependent upon his own 
arm and head only for . security. In a 
social system ho contributes a portion of 
his property, such as the constituted au- 
tliority of the community may prescribe^ 
to form a common fond for the protection 
and defense of all, and when required he is 
bound to add his personal services even to 
the sacrifice of his life, and he who shuns 
the discharge of his obligation, earns an 
epithet compared with which, to a man of 
spirit and virtue, death would be luxury. 

And now, my friend, who takes a por- 
tion of the earnings of commerce? Who 
forfeits ship and cargo of a smuggler for 
evading the law, and for whose use ? Can 
a State do it 1 Is it done for the use of a 
State ? When the merchant has his ship 
and cargo unlawfully seized iu a foreign 
port, does he display the Palmetto of South 
Carolina or the bull-frog of New York in 
his defense, and gravely inform the Secre- 
tary of State of the United States that 
they had not been respected and demand 
redress ? No, sir ; no. He unfurls the stars 
and stripes, and if disregarded the stars 
soon light the stripes to the appro- 
priate chastisement. It is not as a citi- 
zen of a State that his rights, natural, civil 
or political are protected by the United 
States, but as a citizen of the United States, 
irrespective in what State is his domicO, 
I conclude, then, that the United States 
does exercise a great and comprehensive 
authority over the natural rights of men, 
not in subordination to the laws of the 
States, but paramount to them — each is 
paramount in its orbit and their is no col- 
lision in their orbits. 

It is only when one or the other claims 
to deviate from its orbit that apparent col- 
lisions take place. A calm consideration 



30 



is always sufficient to dispel the delusion. 
Your erroneous conclusions rest mainly on 
two errors in your premises : 1st, our an- 
cestors, in forming a National Govern- 
ment, found an anomaly, African slavery, 
in the midst of free institutions. After 
much conti'oversy on the subject it was 
left in the States where it was, to the 
State laws, the Constitution of the United 
States sedulously evading any recognition 
of the idea that man could have property 
in man. They are treated generally as 
persons, sometimes as persons owing serv- 
ice, sometimes as persons immigrating or 
imported, in which last sense they are 
classed under the general head of foreign 
commerce. In any other sense the lirst 
clause of sec. 9, art. 1 , is absurd, for if 
not a limitation upon the third clause of 
sec. 8, art. 1, it must be a limitation upon 
an authority not granted in general terms, 
and incapable, therefore, of limitation. It 
is an observable fact that in sec. 9 the mi- 
gration of free foreigners is put in the 
same category with the importation of per- 
sons, presumable from the force of the 
term, to be owing service ; that is, the same 
class of persons contemplated in the third 
clause of sec. 2, art. 4. By virtue of this 
the United States can lawfully discrimi- 
nate between foreign races and decide 
who may and who shall not enter into the 
mosaic of our nationality. In the same 
breath, clause third, sec. 8, art. 1 , the Con- 
gress is given equal authority over com- 
merce among the several States. Can the 
word commerce receive one meaning in one 
member of that sentence and a different 
one in another member 'I There is a third 
member of that sentence, " and with the 
Indian tribes." Whatever authority is 
delegated by one member of the sentence 
is delegated by each. Under the 1st and 
'id the action of Congress has been con- 
stant and strenuous. I am not aware of 
any direct action under the 2d between 
the States, but between the States on one 
hand, and territories on the other, com- 
merce in slaves has been often regulated 
and prohibited. Yo«. have mistaken the 
treatment of that anomaly for the rule, 
when it is only an exception. Your other 
error consists in considering the territo- 
ries of the United States as the common 
property of the States as States, instead of 
the property of the United States, one and 
indivisible. 

Virginia or Ohio, as States, have no 
more authority to interfere with the organ- 
ization or government of the territories 
than has the autocrat of all the Kussias. — 
They have each their constitutional 



weight in Congress, and that must content 
them on that subject as on all others. 

A State has as much interest in common 
with the other States in a steam ship of- 
war as in a territory, and upon the same 
argument, and has the same right to say 
whether she shall be laid up in ordinary or 
sent to sea, and whether she shall run East 
by North or East by South, as it has to 
say when or how a territory shall be 
carved out of the national domain, a gov- 
ernment organized, the land surveyed and 
opened for settlement. Whether unnatu- 
ralized foreigners or negroes, bond or free, 
shall be permitted to settle there, or the 
population shall consist exclusively of 
free citizens of the United States is for 
Congress, and Congress only to prescribe. 
One point of contest now is to take from 
Congress the authority to regulate com- 
merce between the States. Its bearing is 
seen. But when the phraseology comes 
to be adjusted it will be found to cover the 
commerce between the States and territo- 
ries. 

I have heard to satiety the song that the 
territories are acquired by the blood and 
treasure of the States, and therefore the 
States, &c. I deny the premises, and they 
gone, the conclusions fall of themselves. 
No State declared war ; no man marched 
to battle under the flag of any State. The 
troops were citizens of the United States. 
They marched, fought and bled as citizens 
of the United States, one and indivisible 
only. No State contributed a dime of her 
treasure. At the commencement of the 
war with Mexico, some States advanced 
small sums, and were urgent, and some of 
the most refractory now, insolvent until 
they were repaid principal and interest. 
No'State negotiated a treaty for the acqui- 
sition of any territory or paid from her 
treasury a dime for it. It was acquired 
by the United States, i)aid for from the 
IJnited States Treasury for the United 
States, and is to be controlled and en- 
joyed by the United States in the same 
character in which it was acquired. A 
contrary doctrine, once yielded to, is a 
hei'esy which saps our institutions at the 
base, and we may as well then as ever, 
when that takes place, record the national 
epitaph, 

" How loved, how lionored ouce, avails tliee not, 
A heap of dnst alone remains of thee, 
'Tis all thon art and all the great shall he."' 

• You ask me what our posterity may think 
of our practical good sense should my 
views prevail. If my views were new, if 
I sought to inaugurate new principles an- 
tagonistic to the practice of the Govern- 



31 



meut hitbeito, it would well behoove me 
to make my steps sure, planting each one 
upon incontrovertible principles, but as I 
only pursue the beaten path our fathers 
have trod for eighty years, I may well rest 
upon their practice and tlieir principles for 
vindicating it, leaving it to those who im- 
pugn tlieir x'^'iiociples and practice under 
them to bring forth their strong reasons. 
If our ancestors had believed slaves were 
property by the law of nature, as horses 
or cattle; in other words, had they held 
that the normal (that is natural) condition 
of man was one of bondage, think you 
that they would have declared him free 
when brought from abroad to a land where 
lie was a slave by forceof a local law which 
yon claim fixed his status paramount to 
the lavr of the United States ? Our ances- 
tors never recognized slavery as existing, 
tie facto or dejurc, one foot outside of the 
local limit of the State authority which re- 
cognized it. Where the Constitution of 
the United SfStes had unimpeded control 
it has never in one instance allowed slave- 
ry until the case of New i\Iexico and Kan- 
sas. Our ancestors did '•not believe that 
the normal condition of the earth was one 
of bondage requirig an alBrmative enact- 
ment to render it a place whei'e a man op- 
pressed by force might lawfully vindicate 
his natural rights. I do not wonder a man 
of your acuteness denies the normal con- 
dition. There is no tenable position for 
your doctrine this side of man's creation. 
And now, my friend, I will turn back your 
(juestion and ask you what opinion poster- 
ity will form of this generation should we 
vote the Declaration of Independence a 
stale piece of sophistry, and after our an- 
cestors have for eighty years kept slavery 
confined within the limits of positive local 
law we declare it the normal condition of 
the country, turn it loose to range at will, 
and leave to liberty the poor privilege of 
turning to bay on the defensive only, the 
exception and not the rule. I perceive we 
shall not agree as to what constitutes a 
sovereignty. Nothing but a despotism too 
strong to be overthrown will satisfy your 
idea. To my mind a government founded 
<m the free consent of a numerous people, 
and clothed with authority to represent the 
nation in peace and war, within and with- 
out, is the truest and most legitimate sov- 
ereignty in the world. I do not confound 
the administration with the government. 
You and I have an opportunity to see the 
infinitely little in the head of a nation com- 
pared with which the experience of the 
witty Arch Duchess of Brandenburgh was 
tame and insipid. I disclaim all fervor of 



patriotism . I am constitutionally cool, my 
pulse, when in health, never exceeding 
forty- five, but I trust I am earnest, and 
when duty lies plain before me, ready and 
able to do it, however unpleasant. The 
Government is to my notion ; I do not 
consider slavery as any part of it. It is an 
j anomaly striving to be recognized as a part 
, of the Government. I am opposed to its 
being noticed beyond what it has been ; 
that is, being snubbed and kept from 
spreading. As to the Southwest, Kentucky 
and Tennessee never were Territories. — 
Alabama and Mississippi were ceded by 
Georgia with slavery expressly provided 
for. Florida and Louisiana were taken 
cum onerc, the benefits, as considered, over- 
balancing the evils. Texas came unbid- 
den and has gone unblessed. Let her go. 
" I'll trust myself with weapon tried, but 
never again with thee." 

However ready I might be in a calm 
time to re-examine the Constitution, this is 
no time to consider amendments. If changes 
are to be made claims are to be made 
on one side as well as on the other. The 
{ three-fifths role could never be put in again 
I if once out. According to modern doctri- 
j nes it is an unequal representation of prop- 
erty. It was not so considered by any one 
then . They were not considered property, 
I except quasi, but persons. I desire with 
I you to preserve the Constitution intact, 
I that under it you and I and others may dis- 
I cuss our varying opinions respecting it in 
I peace, safety and friendship. To enable 
j it to be so, iiowever, those bad men who 
; hate it must be taught, sooner or later, and 
I think the sooner the better, that it has 
strength to make its authority respected 
and obeyed even where it is hated. De- 
pend upon it, my friend, no government 
was ever or ever will be, however just, 
long respected or obeyed which has not 
strength and energy to make itself feared 
by the tm-bulent. The imbecility and cor- 
ruption of this Administration has been 
by the factious mistaken for weakness in 
the structure of the Government itself. — 
God grant they may soon w^ake up to a 
consciousness of the serious error they 
have committed. Truly yours, 

ROSWELL MaBSH. 

Hox. C. Keemblin. 



Cincinnati, Feb. 21, 1861. 
iloN. KuswEi.L Marsh, Steuhenville, Ohio. 

Bear Sir : Yours of the IXJth is received, 
and I would say at the outset, that it is not 
a difference in the idiomatic characters of 
two languages which leads^ to misimder- 
standinga between us ; on to contrary, it 



32 



arises from the met, that you are constant- 
ly asserting truisms, whicli are, laowever 
true otherwise, inapplicable to the dis- 
tinct questions between us, because, unless 
I have been totally at fault, we have dis- 
cussed matters solely in their bearing up- 
on the United States Government, or its 
authority thereon. I admit for instance, 
your position as to the regaining of a crim- 
inal's personal and civU rights, when he 
has served out his sentence, but does that 
prove that a slave becomes free, any 
where within the jurisdiction of the United 
States, in the absence of any due course 
of law to make him so? The United 
States are the G-overnment of all the 
States, and surely, it takes " due course of 
law " to change a status, legal in any one 
or more of these States. The govern- 
ment of all certainly cannot declare oft- 
normal the pre-existing institutions of its 
component parts — all authority, even 
State authority, must, I repeat it, use 
some due course of law to break the con- 
tinuity of this legal status; how much 
more the Government of the United 
States. You are doubtless right, that no 
freemen can, in the United States be made 
a slave, be he a foreigner or native, but can 
a slave be made free by the arbitrary dic- 
tum of our United States Government or 
by a normal condition so-called, really an 
absence of laio upon the subject? I't can- 
not be so in a confederation composed 
originally and subsequently of free and 
slave States, and the common government 
cannot have a common law, repulsive and 
directly opposite to the legal status of one- 
half of its members. The territories were 
bought or conquered as the case may be, 
by that common government, and it can- 
not be sound ruling to say that one por- 
tion of the owners, may be excluded from 
the common use for reasons known, when 
the joint purchase or conquest was made. 
A tailor and a miller buy a piece of land ; 
surely the tailor cannot object to letting the 
miller in, to be a miller, when ho knew 
beforehand his vocation. It is inequality 
and not equality to say to the miUer: — 
" You may be a tailor like myself on this 
land, but not a miller." You must see 
that the general goverament cannot es- 
tablish a test for moving into territories, 
violative of that legal status, which ac- 
cording to the Constitution, it is bound to 
recognize. Nor can the people do so by 
majorities, no more than two partners c;iu 
in a partnership of three alter the articles 
by a majority vote. The Government of 
the United States has no law ot its own 
on this subject; it finds the status of the 



State law, which it did not and could not 
make, and which neither it nor the peo- 
ple can arbitrarily change. No due course 
of law can ever therefore spring from the 
action of our Federal Government, which 
unmakes property, except for matter con- 
nected with the rights of eminent domain, 
the war power, etc. Do we still misunder- 
stand each other '? If so, it is not from dif- 
ferences of language. 

The matters you refer to, such as the 
naturalization of a foreigner, do not, in 
the slightest, weaken my position. I have 
always admitted that in a limited sense, 
the Federal Government Uses the legal 
status of persons, and have only contend- 
ed that for the right to do so, the warrant 
must be found in the Constitution. What 
you say about adopted citizenship, there- 
fore, goes to show only that upon that sub- 
ject the actiofi of the Federal Government 
is supreme. But why is it supreme ? — 
Surely only because " in pursuance of the 
Constitution." The United States can 
make an alien a citizen but can they give 
him the right to vote ? No, they cannot, 
not even for Federal officers. Ohio gave 
voluntarily to every citizen of the United 
States, over twenty-one years old, the 
elective franchise. But could a citizen 
from Mains vote unless a year in the State ? 
Can a criminal, who in pursuance of a 
State law would be outlawed, be forced 
upon a State as a citizen ? Now the iqui- 
ry is natural, why the difference ? Why 
has the General Government the power to 
make aliens citizens for States and why 
not natives 1 The Constitution says : — 
" The citizens of each State shall be enti- 
tled to all privileges and immunities of 
citizens in the several States," a clause 
which forbids simply the United States 
Government to discriminate against the 
citizens of any one or more States. The 
point always is, as 1 have stated it, the 
Government of the United States is never 
presumed to have authority, it must show 
the right to exercise it in the Constitution, 
and it can naturalize because the Consti- 
tution gives the jiower, but it cannot give 
the right to vote because the Constitution 
does not give the authority to constitute 
voters. 

So, too, as to the protection of property 
on the high seas or in foreign ports ; the 
United States represents us abroad, and 
its flag and protection is alone known to 
foreign nations, and of course the citizen 
is protected, either because the United 
States have made him an adopted citizen, 
or because he is a native-born citizen, the 
latter qualification being a State birth- 



33 



right. You are right, therefore, to assume 
that on some points of natural and civil 
right, the United States law is paramount, 
but it is only to the extent officially recog- 
nized in the Constitution. The' United 
States is never subordinate in its authority 
to the States when it has actual power, 
but it is always so when it lias no power 
and when the States have. The Federal 
and State Governments eometiraes have 
subordinate jurisdiction. 

The seizure of a smuggler's ship by the 
United States is a lawful act, because it is 
a power necessary to the power to levy 
duties. In fact, there need never be, as 
you correctly set forth, any trouble as to 
the proper sphere of the two governments ; 
each has its appropriate orbit. Questions 
may arise in which it maj' take great vris- 
dom to decide which of the two has juris- 
diction, but if both will remain calm, and 
neither be attempted to be driven to the 
wall, the matter can always be settled by 
going to the source of all general powers : 
"the States and the people thereof." I 
approve of adhering to every autborify 
given by the Constitution to the General 
Government, but I am against exeicising 
doubtful powers and am always in favor 
of recurring to first principles and first au- 
thority, never to construction, for an exten- 
sion of power. 

The foregoing disposes of all j^ou say 
about those exercises of authority, which, 
clearly given in the Constitution, have its 
sanction, and which I do not controvert. 
We are speaking of a normal condition, a 
earte blanche — a common law which you 
wish to make in the face of a previous 
legally existing right. Remember, I again 
beg it ever, that the question is not how a 
fi'ee man is to be made a slave, but how a 
slave becomes fi'ee when brought into a 
territory owned by a government, which 
has bound itself to follow in its action the 
legal status of persons in the several 
States. Where is the authority thus to 
break a legally established right? Does 
not the General Government by so doing 
exercise an undue force oi gravitation, 
which forces the Slates to. fly fiom their 
orbits from feelings of self- protection ? 

And now let me say, once for all, that 
our ancestors found no "anomaly" in Afri- 
can slavery in our midst. The Constitu- 
tion indicates what would be an anomaly 
—and it knows no other, a Iving or anti- 
republican governments. Slavery existed 
under their very eyes, and they left it pur- 
posely outside of the action of tlic General 
Government, because the States refused to 
put it in. For the domestic institutions 



I we have our State governments, and the 
legal status fixed for persons by them 
is law tor the General Government, with 
j few exceptions only, and those named and 
[ clearly comprised within the Constitution. 
: The clause you quote aliout the immigration 
' of persons proves this bej ond question, for 
it speaks expres.sly of immigrations or im- 
portations, wliich ''States shall think proper 
to admit," exhibiting, again aud again, the 
I tender care the fathers had not to infringe 
I on State rights or interfeie unnecessarily 
i with their domestic institutions. 
i I have never asserted that any State or 
States can rule or claim the teriitories as 
States ; what I have said, i.s that there is 
I no authority anywhere to change the status 
I of any person brought there while it is the 
j common territory of the Union, the undi- 
I vided property aud subject to the jurisdic- 
: tlon of all the States, except hy due process 
; of law. Yonr normal oonditiun cannot at- 
I tach to a being who has lost it, who is a 
i slave when he enters, and whose chains 
j must be broken by manumission or equit- 
! able law. Thi% i=i also true in United 
; States vessels of war in ir.s foi ts, arsenals 
1 and on the c-ea, in going from one United 
States port to another. It is even true of 
: a Boston ebip landing in Charteston and 
I taking negroes on board for New Orleans. 
! The owner's right springs not from the 
i soil, it is not a question whether the law 
' (statute) gives it ; it is whetlier it attaches 
I to a certain black person and it sticks to 
I that person wherever he and the owner go, 
j until broken by some act of the owner, 
such as entering a /State where slavery is 
prohibited, manumission or mch like ; 
and so true is this that this Have status re- 
attaches to the negro if he voluntarily re- 
turns to the master, even if no longer in 
the State v.hence he migrated and if in a 
locality within the United States where 
slavery is not prohibited. 

I tvill not weary you by attempting to 
reply to the distinction you strive to draw 
between a thing bought from the common 
treasury, aud one obtained through sepe- 
rato contribution ! Are you really seiious 
in believing that that makes any dilierence? 
I rather guess not ! Where there is a com- ♦ 
mou fund all are presumed t^) have paid 
their share. 

Allow me now to explain a point brought 
clearly out by your lemarks about " our 
ancestors believing slaves property by the 
law of nature, as horses or cattle." I hope 
you never understood me as k^ \ ing that 
our ancestors .so believed ! If yuii did, it 
was indeed a misunderstanding, I hold 
the reverse of this to bo tiue. Tliey re- 



34 



spected slavery only as they did other 
property rights, such as bank charters, etc., 
80 far as State law gave them sanction — 
naturally they regarded all men as free. A 
negro slave could be a slave only through 
State law, and their importation was sanc- 
tioned until 1808. After the prohibition 
of the slave trade the States could not add 
to the number of slaves from abroad ; but 
for those in the States and their children 
State law continued slavery. The ques- 
tion between you and me is, therefore, not 
as to the law of nature — on that we agree 
— it is when the State law ceases. And as 
to this we also agree, that that State law 
cannot override other State law ; that is to 
say, Kentucky cannot force Ohio to recog 
nize the slave tenure, but Ohio may do so, 
and if it does, or has done so, as in the re- 
turn of fugitive slaves, it should keep its 
plighted faith. Where we disagree is, 
whether a State law dies at the State line 
if beyond that line there be United 
States territory? You contend that the 
law of nature retakes effect; I contend 
the State law continues until abrogated by 
valid law. Such a law, I say farther, the 
United States Government cannot pass, 
because it has not general legislative au- 
thority, and because it cannot discriminate 
against the property of citizens of the sev- 
eral States. Nor can the territories pass 
such law, as they are not sovereign ; and 
moreover, that States growing out of terri- 
tories must, as was ever done, especially 
in the lands falling to Iowa out of Missou- 
ri, deal fairly with any property found 
therein. To "make this point clear beyond 
possibility of misunderstanding, let us sup- 
pose a territory on the Pacific ocean. One 
emigrant from Missouri takes slaves there, 
another does so from Cuba. The State 
law of Missouri continues upon the slave, 
because law to the United States ; the law 
of Cuba dies, because in no wise law here. 
Hence I say, a being a slave legally in any 
of our States, remains a slave until freed 
by some valid legal procedure. 

I am amazed that you should style this 
discrimination, the same as " declaring 
slavery the normal condition of the coun- 
try." Must there necessarily be a normal 
condition 1 I have denied it— I deny it 
again. A slave is never a slave by United 
States law, he is by State law ; hence slav- 
ery cannot be normal, nor can it be abnor- 
mal, as the United States have no nornial 
rule on the subject, except its law prohib- 
iting further importations of slaves. Any 
attempt to regulate the domestic institu- 
tions of States or Territories by stigmati- 
zing the institutions of the States of this 



Union is an attack upon the rights of the 
States, a usurpation of authority not grant- 
ed by the Constitution. Confine, if you 
please, slavery to State law, but give that 
law all its legitimate strength, and not one 
tittle beyond it. Adopt for it the same 
rule as all other State law, give it effect 
until it contravenes another equally valid 
law. 

You make me smile when you fancy 
yourself treading the beaten path of the 
fathers. Did they assert the normal con- 
dition in any of the United States territo- 
ries'? They abolished slavery by compact 
with Virginia in the North West — they 
refused to do this for the South West.— 
Did Jefferson have a normal condition in 
the Louisiana treaty ? Did he have such a 
thing in the act organizing the Louisiana 
territory ? Did they, the fathers, put it in- 
to the Constitution 1 Do you mean to say 
that the Declaration of Independence, or 
the Constitution was drawn by them so as 
to include in the word liberty, their own 
slaves? Our ancestors never recognized 
slavery, nor any other property in the 
Constitution ! True ! But why not?— 
The right of property existed and those 
who held these rights did not need any re- 
cognition. They lived before there was a 
United States Government, and were there- 
fore not betogged as we often are as to the 
Government they were making. They 
saw the creature grow before their eyes, 
and a parent would as quick ask his minor 
child to recognize his property, as they 
would ask this of their National Govern- 
ment. They gave it no authority to in- 
terfere, and imposed upon it only the duty 
to protect and follow the status fixed by 
that law, which was before the Federal 
Government was. Neither slavery nor 
freedom is the rule, neither is the excep- 
tion. In both the General Government 
has only the duty to find the State law in 
each case, and having found it to follow it. 
I always supposed you would find your 
position untenable, that the United States 
are our, the States and the people thereof, 
sovereign, and again I say, that I would 
vindicate its sovereignty towards foreign 
nations, even against my own native land. 
I am not for amending the Constitution. 
I think it already contains all the South 
asks, to- wit : Equal protection to proper- 
ty. What we need, what the South needs, 
is a public opinion which is willing to give, 
from an honest conviction of their justice, 
all the rights due to every section of the 
Union. That's the reason I concede them, 
and I doubt the propriety of acceding to 
any proposition from any other motive. — 



36 



May the Constitatiou live forever, is my I 
motto, and may you and I learn each day 
more that there is no sate anchorage any- 
where but in constitutional ground. Let 
us also be just to those whom tempestu- 
ous revilings have driven out of port to 
sea ; let us light for them the beacon- 
light of true constitutional law, ao tliat 
they may return in safety to the old haven 
of the Constitution. 

Yours truly, Chas. Reemelin. 

Steubenville, March 8, 1861. 

Dear Sir : Your esteemed favor of the 
•21st ult. has been some days on hand, but 
the business in Court and some other mat- 
ters have claimed priority and had their 
claim allowed. 

I am glad to see that we are drawing 
together upon some material questions 
between us, and I trust that we shall, in 
the end, be found to accord in all matters 
essential to the unity, peace and prosperi- 
ty of our common country. 

You admit my doctrine as to the prin- 
ciple on which a criminal recovers his 
natural and civil rights when he has 
served out his time. What was that doc- 
trine ? It was this : That it required a 
positive, an affirmative law to deprive 
him ; but only the removal of that law, 
a negative and not an affirmative, to re- 
store him. You ask if that proves that a 
slave becomes free anywhere within the 
jurisdiction of the United States in the 
absence of any due course of law to make 
him so. By due course of law I presume 
you mean some positive statute or judi- 
cial decision. If you do, I say, unhesi- 
tatingly, yes it does so prove to a demon- 
stration. Note the argument : The nor- 
mal condition of all the earth, and conse- 
quently of all the inhabitants thereof, ir- 
respective of shade, complexion or color, 
is freedom and equality of natural rights. 
There is not a foot of earth or water on 
the surface of this planet where, in the 
absence of human laws, a man, a human 
being, attempted to be reduced or retain- 
ed to bondage, to slavery, would not have 
a full right to resist, and, if necessary to 
his success, to vindicate his freedom in 
the life-blood of his assailant. 

The color of the belligerents would be 
an immaterial circumstance in the case. — 
Do you admit or do you deny, so far '? 
Next, I deny that anything in the Consti- 
tution of the United States, or any law 
yet passed in pursuance thereof, changes 
the normal condition of an acre of coun- 
try subject to the exclusive legislation of 
the United States so as to authorize one 



man to restrain another of his freedom, 
except by virtue of a warrant issued by 
a judicial tribunal, or to appropriate his 
earnings except in pursuance of coiitract. 
State laws establish slavery in those 
States which enact them, and so tar have 
changed the normal condition uiiliin those 
limits. Out side of them they have rio 
more force than an act of Congress has in 
France. Now what has the Constitntton 
of the United States and the "laws passed 
by Congress done in respect to slavery ? 

The story is not long but it is very sig- 
nificant. The 3d clause of sec. 2d, art. 4 
of the Constitution contains all there is 
in that instrument on the subject. Why 
is that found there ? Did you ever pause 
to ask yourself? If the Constitution of 
the United States carried slavery on its 
wings wherever they were spread, was it 
not an absurdity to put it there ? The 2d 
clause of art. 6 of the Constitution makes 
it paramount to State Constitutions and 
laws, and that would, on that hypothesis, 
cover the case. On the hypothesis that 
slavery is not contained in the Constitu- 
tion of the United States, and that the 
State constitutions and laws have no ex- 
trajurisdictional potency, that clause of 
the United States Constitution has an ap- 
propriate and proper meaning. I have 
no antagonism to it and never had._ A 
cheerful acknowledgement of its obliga- 
tion and a hostility to it, draws the line of 
demarcation between Republicans and Ab- 
olitionists. Some of the provisions ^ of 
the act of 1850 were harsh and subversive 
of cherished principles of security. For 
instance, read art. 4 of the Amendments of 
the United States Constitution, and then 
contemplate a Kentuckian claiming the 
right to search your house fr'om turret to 
foundation stone without any legal pro- 
cess on his alleged suspicion that his slave 
is concealed there, under the penalty of 
your being indicted for unlawfully resist- 
ing him, if you reject his claim. Is it a 
fair construction of that clause of the Con- 
stitution ? 

There are other odious features which 
create false issues and render the law 
hateful where the Constitution fairly inter- 
preted, would be executed in a spirit of 
liberality. I am glad to see some of its 
harsh features proposed to be softened 
down, and I think its efficiency will be 
promoted by the change. It was put 
there, because without it, neither by the 
Constitution or laws of Congress, nor of 
his State, had the owner of a servant any 
I remedy, if his servant got" beyond the ju- 
I risdiction of his State, any more than be 



36 



now has when he has once reached Canada. 
Now note tlie cautious limitation of the 
language. It is confined to the single case 
of the servant escaping from the State 
where, under the laws thereof, he owed 
service or labor, into another : If the mas- 
ter voluntarily carry or send him into an- 
other State that State may lawfully pro- 
hibit his taking him away again, without 
his consent ; and the usual law against as- 
sault and battery and false imprisonment, 
covers the case entirely. In a territory, 
there being no express positive law pro- 
hibiting slavery and prescribing a punish- 
ment, the man who carried a slave there 
might not be punishable criminallj', for 
that act, but could he vindicate his right 
to restrain him on a habeas corpus, and in 
the absence of that would they not stand 
equal before the law in a case of assault 
and battery '? Clearly I hold they would. 
It does not, as you seem to suppose, re- 
quire a positive law of the United States 
to change the status of one held in a State 
in a special condition. On the contrary, 
if the State desires to continue that status 
it must continue the possession, for a vol- 
untary abandonment of possession and a 
change of status are convertible terms, 
and have been practically so held by aU 
courts in free and slave States in many re- 
ported cases, when limes were more favor- 
able to a dispassionate decision than they 
now are. The reports of Maryland, Ken- 
tucky and Missouri are full of such cases. 
The Constitution of the United States, I 
repeat, does not recognize slavery as ex- 
isting, except by force of State law, and 
does not recognize in that State law, or 
in slavery sanctioned by it, any migratory 
authority. You ask me if Jefferson had 
such a thing as a normal condition in the 
act organizing the Louisiana territory ? 
I answer yes, he did. Read the act in the 
light of history aud then circumstances. 
Spain had established slavery there. — 
France acquiied it after her law was passed 
abolishing slavery in her then colonies, 
and held it but a few days. She did not 
extend her law of manumission to it. — 
Had she not authority to do it ? Clearly 
she had. 

In the treaty of cession the right of the 
people to the property they then held, in- 
cluding slaves, was secured. In the act 
organizing the territory we find the lim- 
its assigned to that clearly defined. All 
slaves carried there by sea thereafter were 
declared free, and the ship and cargo were 
forfeited though she carried but one slave. 

Again, the same act provided that every 
ialave carried from any State in the Union, I 



there for sale, should be ipso /ado fiee. 
Now, what was that but a repeal with cer- 
tain modifications and exceptions com- 
pelled by force of the treaty of cession 
and circumstances of the law of Spain, 
sanctioning slavery there? Those laws 
remain unrepealed — they are early indica- 
tions of the views of the Government un- 
der a Democratic administration, as to the 
authority conferred by the Constitution 
upon the general government over this 
subject. As precedents they are worth a 
thousand Dred Scott decisions. 

The true point at which we diverge 
from each other remains unmoved. You 
claim a confederation formed by the States 
of sovereign independent States as the 
theory of the Government. I, a Union 
formed by the people, of the people tak- 
ing from the States all the higher attri- 
butes of sovereignty, as intercourse with 
foreign nations, armies, navies, war,, 
peace, coinage, treaties — even with each 
other or Indian tribes within their 
own limits — and all revenues arising 
from commerce with many other things, 
and leaving them only a limited lo- 
cal jurisdiction. You ask me whether I 
really think it makes any difference wheth- 
er the national affairs are carried on hj 
funds belonging to the nation as a unit or 
by a fund raised by contributions from 
the several States, and you express the 
idea that I do n®t. 

I hold the difference to be nearly allied 
to that existing between a man who spends 
his own money in his own affairs, and one 
who as agent for thirty-four other men 
having each diverse interests, has a fund 
placed in his hands contributed by all, but 
the proportions furnished by each unknown 
to him and them and never attempted to 
be ascertained, which, nevertheless he is 
required to so expend that each shall have, 
the benefit of his contribution no more and 
no less. In the one case the task would 
be easy, in the other I should wish for 
peace, and when the idea prevails am not 
surprised at finding contentions. There 
is, as I have before said, no difference in 
that respect between Arizona and a ship 
of the Line, or a fortress. The nation 
through Congress must determine the dis- 
position of each, by the same rules and on 
the same principles, viz.: the best interests 
of the nation in which the separate inter- 
ests of a State or of a part of the inhabi- 
tants whether slaveholders or not, cannot 
outweigh the general good. There is in 
fact a more comprehensive view in which 
it should be considered when the authority 
of the General Government is once estab- 



:37 



lislied. If slavery did not now exist in 
the United States would any man listen 
patiently to the idea of introduQing it by 
importation or by annexation of slave re- 
gions'? I am sure not. Would it not be 
very impolitic in a utilitarian view, leav- 
ing all other considerations out, to do so ? 
Now is it not the foundation of a territory 
to become a State, subject to the same 
considerations, and shall the claim of a 
man to the right to carry a mischievous 
institution there outweigh the best inter- 
ests of all coming generations in that 
State ? Has Utah a right as a territory to 
establish polygamy and may she claim 
justly a right to come into the Union as a 
State with polygamj^ sanctioned in her 
constitution! It is only a domestic in- 
stitution, and is not inconsistent, at least 
at first blush, with a republican form of 
government. The words " may admit" in- 
stead of "shall admit" new States were not 
inserted without reflection nor without a 
meaning. You ask how a slave becomes \ 
free when brought into a territory owned 
by a government which has bound itself 
to follow in its action the legal status of 
persons in the several States. I think I 
have already answered this, but to be de- 
finite here, i answer. I deny what yon as- 
sume as the basis of your position. The 
General Government has never so bound 
itself except so long as the person in ques- 
tion remains in the State whose laws fix 
his status or escapes from them without 
the consent of him, to whom the service 
is due. Not an inch beyond that can he 
invoke the Constitution of the United 
States, or any act of Congress, yet passed, 
or, as I think, that ever will be passed, 
to continue the status of the person who 
once owed him service. On the other 
hand the master by violating the terms on 
which alone he was entitled to his service, 
has given him, in the energetic language 
of Judge Gamble, of Missouri, the strong- 
est letter of manumission the wit of man 
could devise. The earlier and better deci- 
sions in the slave States held such manumis- 
sion, like any other form of manumission, 
final, and that the subject ot it could not be 
again held to service short ot a law for re- 
ducing a free man to a slave. Sophistries 
have of late been found for overriding 
that part of the earlier cases. I am gra- 
. tified to learn that you do dot desire any 
amendment to the Constitution. 

We cannot now hope for a body in which 
every proposition will be diispassionafeely 
considered as in that of 1787. 

I have no idea that seceding States, at 
least some of them, will be represent'Cd in 



a convention. Should the,\ not, and 
shoidd amendments be prepared and sub- 
mitted, must or must not they be counted 
in determining the ratification by three- 
fourths of the States ? 

Other sequent questions press them- 
selves, and will readily occur to you. I 
fear the end of a long excited contest over 
amendments, will find the sections more 
exasperated and farther estranged from 
each other than the beginning. To unite 
upon any amendments is, I think, impossi- 
ble now. The real struggle is to get slav- 
ery into the Constitution as an entering 
wedge, trusting then on an old principle, 
for its future development within it. It is 
a vain effort. 

This letter has been written by snatches 
interlaced with " Mr. M. the Court wants 
you," and other matters. I fear it is alit- 
tle disjointed, like the man's dictionary, 
though the ideas are well enough in them- 
selves. Truly yours, 

R. Marsh. 

Hon. C. RpJKMEiJN. 



CiKCiNNATi, March 13, 1861. 
Hon. Koswkll Marsh, Steubenville, Ohio. 

Dear Sir :— Yours of the 8th is received. 
I am, like youself, glad that we are having 
an " issue joined." It is not, however, the 
issue you are constantly pressing, but one 
essentially different in fact and in law. — 
We are not discussing the legal condition 
of human beings generally, but that of 
slaves, legally slaves, in one of our States, 
taken by their masters to an United States 
Territory. The question is not, and can- 
not be, what is the common or statute law 
in that territory ? as there were no people 
there to make a law, and as the Indians 
and white sojourners therein had no power 
to make any, the United States Govern- 
ment has no United States law upon the 
subject, and the only law there is is the 
State law covering the servitude of the 
slave. This State law you claim to abro- 
gate by the universal law of liberty, and 
reminding me of the fugitive slave clause, 
you ask: " Why is it found there?" and 
further : "If the Constitution of the Uni- 
ted States carried slavery on its wings 
wherever they are spread, was it not an 
absurdity to put it there f " I quote your 
words to point out once for all the funda- 
mental errors under Avhich you labor. — 
Who has contended that the United States 
Constitution carries slavery anywhere ? — 
Have I * The very idea is repugnant to 
; my feelings and judgment ! I do not even 
! concede that the United States Constitu- 
I tion spreads, in strict propriety, over the 



38 



present territories. It did over those ce- 
ded by the States but not over those pur- 
chased, for you, yourself, agree that the 
purchase of Louisiana was unconstitution- 
al. Much less then can I harbor the idea 
that the United States Constitution either 
makes or unmakes slaves in territories. — 
That instrument has no law upon that 
subject, nor does it give power to make 
any. Equally fallacious appears to my 
mind the view so often presented by you, 
as if freedom came from the soil, the land, 
the acre. It is a personal relation — the 
man is free or slave, as the law may be. 
In one country the natural freedom of man 
in his person is set aside, in another it ex- 
ists, and a judge has to be governed by 
that law, whatever it may be. A slave 
brought to England is declared free, be- 
cause the English law so requires. One 
brought to Turkey is not sat free, because 
the law does not so read. If there were, 
therefore, any law upon this subject in 
territories, that law would have to be 
obeyed. The Ordinance of '87 was such a 
law ; it was passed in pursuance of a com- 
pact with Vfrginia, and hence valid. In 
the Ordinance for Tennessee there was no 
such law, and only a provision that aU of 
the Ordinance of '87 shall apply to it, ex- 
cept the clause relating to involuntarj^ ser- 
vitude. In the Northwestern territory 
slaves became free because the law so said; 
in Tennessee and other territory the slave 
remained such in the absence of all law on 
the subject. 

The clause in the Constitution you call 
my attention to, was written under that 
very impression. It reads : "No person 
held to service or labor in one State under 
the laws thereof, shall, in consequence of 
any law or regulation therein, be discharged 
from such service or labor, but," etc., etc. 
This clause contains two requirements — 
1st. The slave must owe service or labor 
under the laws of a State in the Union ; 
2d. If so held, he cannot be discharged "in 
consequence of the law or regulation of 
another State." The first recognizes the 
State law as valid to hold a slave, the sec- 
ond guards against the exercise of a sov- 
ereign right of a sister State to pass a reg- 
ulation or law discharging a slave. The 
Ordinance of '87 does not contain the 
words italicised, for evidently the framers 
of the Constitution had no idea that a slave 
would be discharged either in the States or 
territories except " in consequence of a law 
or regulation therein.'''' They knew the 
States had a right to pass such a law or 
regulation, and hence guarded against it ; 
but had no idea that a territory, the com- 



mon property of all, might set aside the 
property rights of States and individuals, 
members of the common country to which 
that territory belonged. 

We come back, therefore, to the true 
point involved, which is. what relation does 
the General Government bear to the ter- 
ritories and to those who migrate into 
them. You say there is a law there ! I 
say there is not! To have a law of per- 
sons, there must be persons to make it as 
well as persons to apply it to. The only 
persons who come there, bring a law upon 
personal rights with them. That law was 
valid in a State of this Union, it made a 
human being property, and it designated 
the owner. That owner cannot be depri- 
ved of that property, " except by due course 
of law ;" this is the language of the Con- 
stitution. Where is that due course of law 
to come from '? From the soil, say you ! 
Who owns that soil ! The United States 
Government in trust for the inhabitants 
and citizens of the States. All your argu- 
ment is, therefore, reduced to this : The 
soil of the territory makes a supposed law 
overriding an actual State law ; this law 
of the ground unmakes the law over the 
person ! A fiction destroys a reality ! ! 

You quote the laws in reference to Lou- 
isiana against the importation of slaves 
from abroad, or for sale from States.-^ 
These acts do not prove your position. 
The importation of slaves is a matter spe- 
cially referred to in the Constitution, and 
if our General Government has any pow- 
ers at all in territories, it has of course 
those granted to it in the Constitution. — 
There were people in Louisiana, there were 
laws there, and a knowledge of those laws 
is absolutely necessary to understand the 
gist of the question as to that territory. — 
There must, have been some special reason 
for the legislation you refer to, or else why 
was it not repeated for Arkansas and Mis- 
souri, both territories taken out of the 
Louisiana territory, but not populated to 
any great extent. Slaves were taken from 
Kentucky to both these territories, and al- 
so after they became States. But do you 
not see that you have disproven your own 
previous argument ? You first assert that 
slaves become free in pursuance of natural 
law in the absence of law, and now you 
quote laics in pursuance of which slaves 
sent for sale become free. Would they 
have become so without these laws ? 

Thus we revert to the initial question : 

Is there a normal condition for persons iu 

the Unitsd States? Is there such a thing 

j in the United States Constitution ? Is there 

I a common law on this siibject for all the 



39 



States ? Is there one for the tei-ritoriea ? 
If there be no common law, as clearly there 
can be none, who can legislate '? The Gen- 
eral Governmentmay assume to do so from 
necessity, it cannot do so under the Con 
stitutiou, except for Indians and in pursu- 
ance of Stiite cessions or laud regulations. 
Let us accede, then, ilie necessity of the 
case nnd the question instantly arises, can 
the United States Government, thus act- 
ing by tacit consent merely, declare a law 
of pel sons valid in some States of the 
Union, invalid in territories; in other 
words, cafi the right necessity gives, be 
strained to go beyond necessity? Can it 
set at naught the existing legal relations of 
persons brouglit there or coming from the 
States ? The Fugitive Slave Law was al- 
ways extended to all the territories. Why 
this universal practice? 

It appears to me clear beyond contradic- 
tion, that the Federal Government cannot 
conjure up a fancied normal condition, or 
common law, contradictory to the legal 
status of, several of the States of the 
Union ; none such exist, none can be made 
by President, Congress or Court of that 
Government, as it has agreed to have none, 
but to follow the legal status recognized as 
existing de facto and dejure by and in pur- 
suance of State soveieignty. 

We agree, then, that there is no power 
in the General Government to make a 
slave ; we also agree, that a slave, taken 
by Ills master to a sovereign State that for- 
bids slavery, becomes free ; but we differ 
upon the issue, whether a slave taken from 
a slave State one of the United States to a 
United States territory, may be discharged 
in the absence of all law upon the sub- 
ject. There can be no common law, there 
being no preceding usage ; and there can 
be no statute law as there is no sovereign 
legislative authoiity. 

Now, ir cannot be possible that the joint 
government of both free and slave States 
can rightfully claim that it may, by its will, 
declare that the theory of our government 
is contrary to the actual facts, and under 
that assumption enact that there is a nor- 
mal condition for men in territories which 
is not in the States? It has no specific 
authority by the Constitution to do so — 
that instrument forbids it to deprive any 
one subject to its provisions of his prop- 
erty, except by due process of law. No 
citizen of the United States can lose his 
property rights anywhere within United 
States jurisdiction by any such shadowy 
normal condition, or by a claim of the 
natural rights of a slave who never had 
them. 



We both admit that this right of prop- 
erty must be respected within the States in 
question, and I now ask, where is the line 
pointed out in the Constitution where this 
obligation ceases ? The States never bouod 
themselves to respect it, except as to fugi- 
tive slaves, but the United States are un- 
der an universal obligation in this matter. 
The distinction arises from the fact that 
each State is sovereign in its legislation as 
to the rights of persons, while the United 
States must acccept, as law, the relation 
fixed by sovereign State authority. 

Again : we jointly agree that the Fed- 
eral Government is not bound to recog- 
nize riglits of property attached to per- 
sons or things brought from abroad, as the 
Constitution very clearly confides this very 
subject, of the importation of foreigners, to 
our General Government. But we disa- 
gree at once, when you attempt to apply 
the rule established in such cases to citi- 
zens emigrating from our States into terri- 
tories with or without slaves. You seem 
determined to forget that slavery existed 
before the United States Constitution, and 
that the property rights which you labor so 
persistently to keep out of the territories, 
are tJie legal regulator of the very slavery 
which preceded that instrument. Of course 
any right of property in States existing 
when the Constitution was made, comes 
under the clause that no man shall be de- 
prived of his property, except by due 
course of law. Deprived by whom? I 
say, by the United States Government 
against which this prohibitory clause is 
meant. That government has no sover- 
eign authority in this matter, its action on 
such property must be simply protective of, 
and subordinate to, the owner's rights. The 
words, as I write them, chill me, for I feel 
deeply for human rights ; but in matters like 
these involving others' rights, we must be 
guided by the calm, yea, I may as well say 
it, COLD reasoning of intelligence, rather 
than the warm illusions of our feelings. 
I, at least, feel myself compelled to decide 
this question, not by what my anti-alavery 
heart wishes, but by the inexorable logic 
of stern constitutional duty. 

\Ve labor under about the same feelings, 
for we both are against slavery, but we 
diifer widely in our imderstanding of the 
law in the premises, and hence we wonder 
at eaeh other's obstinate adherence to our 
respective views ; but I surmise that your 
firm reliance on many points you had hith- 
erto taken for granted, begins to be some- 
what shaken, while every argument in the 
discussion exposes more vividly the point 
where year error lies. You look at the 



40 



United States Constitution, and ask with a 
puzzled countenance : where is the clause 
that recognizes slavery '? I look at the same 
instrument and ask: where is the clause 
which gives to the Federal Government 
any authointy over the rights of person 1 
Where is the power granted to make by 
law of Congress, or executive degree, or 
judicial decision, a rule on matters re- 
served to the States and the people thereof! 
They were and are the masters and crea- 
tors of their general government, and 
hence it is strange that a so much better 
lawyer than myself, such as you are, (and 
I am sorry to have to admit that this is no 
compliment,) should assert that a State 
law, fixing a legal status for persons, has 
no more force in our territories than an act 
of Congress has in France ! Now, it is an 
actual fact, occurring every day, that 
the contrary is the rule in nine- tenths of 
the affairs of life. Our marriages, cur 
property, (outside of real estate) even cor- 
porate rights are recognized in territories, 
and it needs only the proof that they ac- 
cord with State law to give them legal foot- 
ing. Banks chartered in States do busi- 
ness in territories ; corporations incorpora- 
ted in New York build railroads, tele- 
graphs, etc., in these same territories, and 
apprentices would be included in this re- 
cognition if it were not a trust created by 
the State over minors, which makes the re- 
lation amenable to special courts, so that 
a removal of the ward beyond the juris- 
diction of the court is an offense. 

Another oblique position of yours is, the 
idea that the United States Constitution 
carries freedom to every i)lace it touches, 
and you persist in making me say that it 
carries slavery everywhere. The truth is, 
the Constitution carries neither slavery nor 
freedom anywhere; it is expressly prohibit- 
ed from meddling with either. The Fed- 
eral Government is not a dispenser of rights, 
and the most valuable rights of person and 
property are those named in the bill of 
rights, and particularly secured as against 
federal interference. I am free to say that 
all the good obtained through the Union 
would be worthless the moment that gov- 
ernment becomes the ruler in matters like 
these. To preserve due State icdepend 
ence and to prevent undue national power, 
are duties taught us by Jefferson, Madi- 
son and Jackson, and as to my rights of 
person and property, I feel safe only be- 
cause the generation which made the Uni- 
ted States Government was wise enough to 
prohibit that Government from improper- 
ly meddling with them. Once make our 
General Government the source of our 



civil rights, and mankind will be startled 
by the tyi-anny it will then be capable of ; 
it will then as much outstrip in corruption 
and arbitrary action all past governments, 
as it did them in its beneficent working 
when in charge of States Rights men. 

I coincide with you in almost all you 
say about the Fugitive Slave Law. I have 
no doubt that it is unconstitutioual : but I 
am equally firm in the belief that Ohio has 
not done her whole duty in this matter. 
But this does not justify the General Gov- 
ernment to coerce us into carrying out our 
obligation assumed by us in the ordinance 
of 1787, as well as by becoming a State. 
Kentuckians, and especially Virginians, 
should be made to feel, when they come 
for their fugitive slaves, that they are in a 
friendly State and among a people who 
never repudiate an obligation, however 
disagreeaiile it may be. Then no one need 
search our houses, the federal authority 
would grovr shorter and our affections 
larger, hoili great considerations at this 
time. 

I am sure we shall never agree on your 
theory of our General Government. The 
Constitution and its history directly con- 
tradict it. The Constitutioual Conven- 
tion was called by the States, they voted 
in it by States, it was '■'■submitted to a con- 
vention of delegates cJiosen in eaeh State 
hij the people thereof .^ (I quote from the 
resolve of Congress ;) the States sev- 
crally called conventions and ratified it as 
States ; the Constitution itself requires 
■nine States to ratify it, and even then it 
was to be binding only " hetiveen the 
States so raiifyinf/ the same." (I again 
quote from the Constitution itself.) I 
think it worse than futile, with this plain 
historic statement before us, to try to con- 
strue the States and the people thereof out 
of the Union as its founders, and to get in 
theii stead a " people of the United 
States." Jt is simply an attempt to falsi- 
fy the record. We bad before the Con- 
stitution, we have now, peoples in our sev- 
eral States, and whenever you prove there 
are no such '* people^' you i^rove away 
also a people of the United States, for to 
have a people of " United " States, there 
must be previously peoples in the States 
to be united . I am really sorry to see you, 
so true an American and so able a jurist 
in matters generaliy, mis-state and mis- 
construe the proudest title of our constitu- 
tion-making statesmen, that of having 
formed a Union and an effective Govern- 
ment without destroying State independ- 
ence. 

Tnere is a vast difference between the 



41 



^qnestioti you ask ine, " whet]i*»r, if we 
had no slave Stites iu the Union, we 
should admit any into it;" and that, raisetl 
by me in eo many forms, " whether, hav- 
ing: flf^eeD already in, we should persisr- 
eiitly shut our eyes to this fact and the in- 
evitable sequences which follow from it. 
and thus blind to the truth, argue on slav- 
ery in territories and States." We read 
in an old book about " straining at a gnat 
and swallowing a camel." Our fathers, it 
seems, swallowed the camel, our genera 
tion strains at a gnat. They formed a 
Union of, all hut one, slave States ; they 
devoted a southwestern empire, in territo- ' 
rial extent, to slavery, and a northwestern 
one to freedom ; our people of to day 
quarrel about the " remnants.''^ To the ', 
Union the fathers made, part slave and 
part free, I came voluntarily, and after ! 
five years' residence became a citizen of 
the UuitM States. What right have I to | 
turn up my nose at the domestic institu- 
tions of one-half the States composing | 
this Union ? Am I a citizen of the north- ; 
ern States only or of all the United States? i 
I cannot and will not divide my sworn ! 
allegiance to all the peo(>le of all the 
Stares of this Union, and I abide in good 
faith by all the legitimate consequences, 
flowing from the fact that I am a citizen of 
a Union, part slave and part free, and I 
now say to you that your " normal condi- 
tion " dsvindles before the fact here point- 
ed out. Slave States were, and are in the 
Union, and you must seek for your nor- 
mality another country, here it is aji un- 
truth and a fallacy. 

Believing as I do, that our United States 
Contitution does, as it is, full justice to 
all the States, if we will but view it with- 
out prejudice, I wish for no atnendnieut. 
What needs amending is public opinion, 
it puts its passions into our politics, and 
there lies the mischief. The slave States 
ask, of me and you only, that we abstain 
from settling local matters through feder- 
al politics. I cheerfully accord it, and 
would be still more glad if, by common con- 
sent, all and every entanglement with the 
domestic institutions of States and their 
people were forever avoided, for that 
is exactly what I want. I am for no 
policy which increases the connection 
of our Central Government with local 
aflfdirs, and especially with slavery. 
Hence, I stand by the Constitution made 
as it was by States Rights men and 
interpreted as it has been by States Rights 
Democrats- 

I remain, truly yours, 

Cn.\s. Rkemelin. 
6 



Mahch 15. 1861. 

Since writing the forgoing, I have re- 
read your last lorter7 and I find that 1 
overlooked some parrs of it, ;tnd failed to 
reply fully to others, heru-e, ^ou mutjt al- 
low me a few more words. 

I do not see the cogency of the deduc- 
tions you draw about rhe regaining or fee- 
doni by criminals, nor their applicaiion 
to daves, especially not the l)e.ariiig this 
has on the qnesrion how far the Uni'ed 
States Government may interfere with 
slavery. A criminal looses his freedom 
by judgment of vouvi for a defiu He period, 
and ot course becomes free agaiu «)U the 
espiration of that peiiod. The slaves 
whose legal status we are discussing, ntv- 
er were free in the e;\eof the General G-)V- 
erument, but property, which like all other 
property, it protects when within its jur- 
isdiction, not because it made them, or 
would make them property, but because 
they were, and are such by Stafelaw, where 
alone is the authority to dereimiae such 
maters. The United iSraJ-es Government 
finds them slaves, and there leaves them, 
having no power nor lespousibility in 
making them such. They' are not sen- 
tenced like criminals for a term of months 
or years, but are slaves for lite, as rheir 
parents were befue them, and as their 
children will be after rhem unless f(ie\ are 
emancipated. The issue ever is where is 
the authoiity to abrogate this relation of 
theirs to their masters ? You argue in 
favor of that which ;^ou desire, I by what 
is the actuality. We both wirsh the 
same, but you permit your idea of what 
should be, to override your judgment as to 
the actual facts! You are ouc hunting 
machinery with which to remove an evD, 
and finding the United Stales Govern- 
men handy, press it into your service. I 
demur, and contend that jielding to that 
Government power for such a purpose, is 
.\ielding it for all purposes, it becomes un- 
limited and then of course all liberty de- 
parts. The Federal Government r'lever 
loost s b) not getting undue jjowers; oil the 
coutrary it gains by not having them, as 
the less it meddles with domestic affairs, 
the stronger it is Let us be thankful, 
therefore, that it has no law in such mat- 
tors, that it takes ic as it finds it, and is 
without authority to charge it, or supply 
its abaceace. In short, let it ever be un- 
der8t«>od, that the State Governments, and 
not the General Government fixed the le- 
gal relations of our black race. 

The normal condition of all mankind 
has unr.hing to do with the qnesrion. 



42 



the international aud not the civil law 
tarnishes the rule of constraction and as- 
certainment in this matter, and the inquiry 
must first of all be made and settled where 
the jurisdiction lies. I again aver not 
in the United States Government ! 

You speak of the inherent right of every 
human being to his freedom, even to shed 
blood in its vindication, and I have never 
quescioned it, and yet, in case of au insurrec- 
tion of slaves, would :aot the General Gov- 
ernment, on call from a Sfcate,have to repress 
it? And why? Because the Constitution 
says so ! But could it or would it without 
the application of the respective State 
Legislature or Governor do so ? Certainly 
not ! Here is your inherent right again in 
conflict with the Constitution and the 
rights of a State ! Which determines the 
action of the General Government ? You 
see there is the freedom of persons and the 
freedom from domestic violence by a State; 
so is there a State liberty and a personal 
liberty, and each is entrusted to different 
public organizations. You would tree a 
negro by the General Government, I would 
keep ray State free as against the same 
Government. In my mind the Federal 
Government is dangerous to liberty the 
moment it is boundless in power ; in yours 
it is the liberator of slaves. The future, 
when jou and I may bo gone, will tell 
whose ideas were right. 

I deny the right of France to liberate 
the slaves in her colonies against the con- 
sent ot the owners, as our ancestors did 
tliat of the British Parliament in the North 
American Colonies. History has acted in 
this matter and pronounces the wholesale 
emancipation of the Republicans of revolu- 
tionary France to be an act of folly and in- 
justice. Moreover, that act of France — 
gone )jia<f— never took effect in Louisiana, 
nor did Jefferson sanction for a moment 
such an idea. He never claimed that slaves, 
held by State law, could be emancipated 
by federal will. Abolitionist as he was 
in his State, he never was such as a fede- 
ral otiicer. Some silly folks see au incon- 
sistency in this ; they do it because they 
don't understand the nature of our govern- 
ments. Every American statesman must, 
necessarily, commit the same inconsis- 
tency. Washington, Madison, Jackson, 
Clay, Silas Wright, etc., all did it. I see 
in it, however, only the innate, clear- 
sighted, discriminating intelligence of their 
minds ! They, each and all, recognized 
the continuity of slave tenure until broken 
by sovereign State law or manumission. 
The ordinance ot 1787, and that for the 
territories south of the Ohio river of May 



1 26ths 1^90, weie drawn in that spirit, for 
I without Vii'ginia's authority slavery could 
not bo prohibited in the first, as it was not 
without that of North Carolina in the sec- 
j ond. Not a foot of American soil is now 
free in our Union , unless made free by 
State consent ; nor has a single slave be- 
come free, except by the/ sovereign act of 
States or individuals. Hard words, you 
will say. and I feel all their hardness, but 
, it needs hard sense to remove soft illusions. 
Do you really mean to contend that the 
power of the United States Government 
; over the inhabitants or immigrants into a 
territory is the same as that over the in- 
uiiLtea of a National ship ? I pause for a 
reconsideration on your part on this point. 
i You compare polygamy with slavery, 
I and assert that at " first blush the first is 
i not inconsistent with a Republican form 
! of government." I am shocked to find 
j such words in your letter, especially as you 
: knew that your gottd wife would have to 
copy them. Please now to look well to 
your previously maintained opinions and 
answer me : Can the Federal Government 
i pass a law on marriage '? No ! Next, is 
i not the universal rule upon the relation of 
! the soxea in all the States, that of the mar- 
! riago of one man to one woman ? Thus I 
j draw the conclusion, that the United States 
I authorities, though unable to pass a law 
I upon the subject, are not bound to recog- 
' nise in our territories a plurality of wives- 
An United States judge could, therefore. 
I rule with great propriety, that such a rela- 
tion, having no foothold in any State law, 
and there being no power in territories to 
establish it, it is void, and accordingly give 
; the inheritance to the children of the first 
wife. This should, of coarse, be done in a 
proper case. I am, moreover, willing to 
, go further and yield the propriety of Con- 
gress or even the President giving public 
I notice in the name of all the States of the 
I Union, that polygamy being repugnant to 
the laws of all the Statesin the Union, that 
plurality of wives is an illegal relation in 
i any territory of the United States, and to 
i order all officers to treat it as such. 

You perceive that we have here a veri- 
table " normal condition,^'' a universal rule 
1 in fact * K fifteen of our States had from 
i time immemorial had Turkish laws sanc- 
\ tioning poly gamy, the facts would disap- 
I pear, and with them the normal condition. 
Hence, whether "inconsistent withare- 
! publican form of government " or not, as 
j long as the States are unanimous against 
! polygamy, you and I must even becontent 
I with our excellent helpmates, and at once 
i dismiss all lurking hope that we may, by 



48 



;.■ ;;■ •y\ijf'f'. •■il! ■ f^t 
moving Into tJnited Suites twiitories, vote 
ourselves more wives. 

Kiodred to this is the question, whether 
one joint owner in a piece of real estate 
can properly object to the occupancy of a 
co-owner, upon groundsastotheco-owner's 
personal relation, when that relation exist- 
ed when the purchase in common was Kiado. 

In conclusion I mu3t say that it looki to 
me as if we were discussing an irreconcil- 
able radical difiorenco as to onr United 
States Constitution. We agree upon ab- 
stract axioms, bat diller in their applica- 
tion to our Federal system. You find 
powers in that government, by implication, 
which I deny, and the difference arises 
that you argue from the stand-point of a 
civil government, I from that of interna 
tional relations by the law of nations. You 
are right if our United States Government 
is a civil government ; I am right if it is a 
States Union. Accordingly we do not dis- 
agree as to the moral rightfulness of slave- 
ry, but whether the central government of 
a number of State governments can ostra- 
cise the institutions of one half of these 
States by declaring in iavor of a theoretical 
normal condition adverse thereunto. This 
would, in my humble opinion, make the 
agent the principal, and to that I cannot 
a'^sent. Truly yours, 

Chas. Keemehn. 

SxEUBEiJViLLE, Marcli 26, 180 1. 
Dear Sir : Your esteemed favor of the 
1 3th came to hand on tholGth. Where 
do you liud what you have all through 
our correspondence seemed to take for 
granted, viz.: that the United States have 
agreed to have no normal condition of its 
own, bat to follow that recognized as exist- 
ing de facto and dejure by State sovereign- 
ty ? In the extent which you give ife.I utterly 
deny, as I have repeatedly done, any such 
agreement. The Constitution of the Uni- 
ted States recognizes slavery in the States 
which Sancton if and provides for the re- 
covery of such as escape, not such as are 
voluntarily carried beyond those limits. 
You claim that it requires a positive pro- 
hibition to prevent slavery. I contend 
that the abscence of a positive sanction is 
sufficient. The difference goes back to 
the law of nature. Was that a law of 
freedom or of slavery ? You agree that a 
master who takes his slave to the terri- 
tory of a sovereign who prohibits slavery 
frees his slave. I go farther because 
my elementary principle inevitably car- 
ries me farther. Yours as inevitably ex- 
hausts itself at that point. I say a mas- 
ter who cftrrieB ])J8 slave to a country 



I where slavery is not known tu the lavr 
i frees him. And I say further that a terri- 
tory where the United States has exclusii^c 
{jurisdiction is a territory where slavery ift 
i not known to the law. I ask again what 
> response a judge in such a territory mnst 
i make to a return to a habeas corpus, that 
he had the person in court and claimed the 
right to detain him because he was his 
slave ? I care not how the return is va- 
; ried nor how he derives title whether from 
rho King of Dahomey or from a statute or 
custom of South Carolinia or of Virginia. 
All would be equally patent and equally 
impatent in the lociis of that court's juris- 
I diction. A law enacted by a lawgiver 
having jurisdiction over the locim in quo 
sanctioning the status must be produced. 
I The principle of the local restriction of 
, laws of domestic relations goes much 
farther, for if an apprentice be bound to a 
mechanic in Ohio to be taught the trade. 
i and the master remove with him to Indi- 
I ana or Kentucky, the indentures are for- 
feited. It is singular that no case is re- 
I ported of an attempt by a master to hold 
, a slave in a tenitory, at least 1 can find 
I none. Cases have' arisen in the free 
States, and with a uniform result. You 
: say no prohibitory statue can exist by 
' United States law, in another place you 
say you smile at my idea that I adhere to 
tue doctrines of the fathers of the Con- 
stitution, leaving to those who impugn 
them the laboring oar. Now it so hap- 
I pens that within forty years after the adop- 
[ tion of the Constitution, Congress did pas? 
some fifteen statutes, prohibiting the car- 
rying of slaves from slave States into ter- 
i ritories, by land and by water, and in some 
I of the cases they were slave territories. 
I A diligent search does not show an in- 
stance in that time in which the Constitu- 
tional authority was disputed and I think 
the yeas and nays were never called on 
' the passage of such a statute. They were 
approved and signed by Washington, Jef- 
1 ferson, Madison, Monroe, Jackson, allslave- 
! holders, and as likely to know the rights 
I and authority of all parties as any body 
i now. 

! You ask if I really mean to contend that 
the United States has the same right of 
property and jurisdiction in a territory as 
in a national ship. In answer at once I 
do assert it as undoubtedly true that they 
have. Why not? Both are purchased 
and paid for out of the same national 
fund. Both are objects of purchase, bar-; 
ter and sale. 

The United States has more than onou 
conveyed away as well as acquired terri- 



44 



toiy for au equivalent. It was the plain 
natural idea of our good fathers that hav- 
ing acquired, they and they only had the 
right to govern and lay the foundations of 
the future comirmnity theie, that induced 
tbf>m to mould them as they did. 
Tiieir legislation over them was not con- 



spring ftom the people, the source of all 
authority. The State organization being 
a delegated authority was admitted, ap- 
parently on all hands^ to be inadequate to 
divest itself of a part of its constitutional 
authority and transfer it to a third party. 
The most of the little tha>*". passed on the 



iined to slavery. The laws of desct-nt, of j subject in the convention will be found in 
dower, wills, transfer ol title inter alia j the Madison papers, vol. 3, page 1468 to 
wtre presc-ibed. I tell you my friend, the ! 1470, Luther Martin, of Mviryland, on 
idea that the Stare laws are entitled to af \ that point, being decided against his re- 
fect the control of the United "States over j sistance, left the convention in discontent 
the territories, is a modern heresy finding because the State authorities wer© passed 
no warrant in any Constitution State or over, and published an intemperate pam- 
National, nor in any legislation under phlet against the convention and its la- 
them. Itcanonlj be established by de- bors. It fell still-born at the time, but 
nouncing all the legislation respecting the many of his ideas are now resuscitated by 
territories, down to 1854, as uuconscitu- men who have no idea of their origin, aL'd 
tional and void. You refer me to the i who. in their zeal to place the States para« 
principle that no man shall be deprived of! mount to the United States, read the Con- 
his property escept by due process of law j stitntion of the United States with the 
as contravening my doctrine. I admit the I sixth article left out. 
piiuciple and will defend it in a proper! You have not yet answered my special 
case as firmly as any one, but I insist that | plea, in a former letter, of a Connecticut 
when a slaveholder brings his slave into | man indicted for treason against the 
Ohio, or cairies hiiu to a territory where ! United States, that the State of Connect!- 
there is no statute sanctioning slavery, he j cut had not the constitutional authority 
does lose him bj due process of law, and j to transfer his allegiance to the United 
has the reflection that his loss is the result j States Senator. Mason, on that principle, 
of his own injprudent act. You admit | declared that he owed no allegiance to the 
that the rule of rhe United States is free- j United States, but that all his allegiance 
dom as to all slaves brought from abroad , was due to Virginia. On your doctrine 
The diHtinciion is that all slaves brought he was right, and Senator WigfalPwas al- 
inio the United States, since 1808, arefieo, i so right in the further sequence from the 
all hough broughi into a slave State. [same premises, that the withdrawal of 

I rejoice ihut what you feel compelled '■ one State dissolved the partnership as to 
to advocate is repugnant to the impulses j all, requiring a new partnership contract 
ot your nature. 1 did not doubt it, nor i between those who desire to continue the 
need that test to prove your sincerity in I Union. This is so familiar a feature of 
the doctrines \ou advocate. I said within [ the law of partnership that Senator Wig- 
the exclusive jurisdiction of the United I fall, or even you or I, humble County 
Slates. The distinction is the very hinge Court lawyers can claim credit for no re- 
of the argument. Tliis and the other markable sagacity for the discovery. The 
heresy that the States, and not the people, error of Mason, 'Wigfall and my friend 
formed the Ci>LS!irutiun of the United ; Reemelin (pardon the association) is in 
Sutes, are the sources of all our present' the premises. The deductions are perfect- 
troubles, and couid not be reasonably ex | ly legitimate and are not half exhausted yet- 
p<ciea to pi-oduce any other or better j I cannot imagine where you think you have 
fiuit. Had such been the real origin and ; seen any hesitancy on my part as to any: 
prmciph 8 of the United States C<>ustiru- 1 constitutional doctrines I have advanced, 
tiou we should have been as much torn ' I am not aware of any. Nor do I look 
and distsac ed by civil war forty years i with any puzzled countenance at the Con- 
siuce, as Mexico or any South American ; stitution. All its provisions, the legisla- 
Stale has bet n. The question was made, ; rive, executive and judicial transactions 
dr-haied and settled in the convension in | under it, and a vast mass of political and 
1787, huw the Consritution should be rat ; partisan controversies over it, have long^ 
ilied and adopted, whether by the State j been as familiar to my mind as household 
organizations or b\ conventions of the | words. 

people. Conventions were adopted lor • It is by no means singular that the great 
vaiiiiUH reasons in fotm, all, however, con- j resistance to the adoption of the Conetitu- 
ceniiaiing in the piinciple that aConstitu j tion in the conventions, and in some ot 
tioD being an organic law could only them it was long and very bitter, was be- 



45 



cause it was uot wliat it is uow claimed } 
by the Democrats and Southern men that \ 
it is. The opponents of the Constitution | 
were then known as States rights men. — ! 
Gerry, of Massachusetts, who beome Vice 
President, and Mason and Randolph, of 
Virginia, wlio became leading States 
rights Democrats, refused to sign it as 
members of the Convention, strenuously 
opposed its adoption in their States, and ; 
George Clinton, of New York, who also ; 
became Vice President, resorted to every 
means to prevent its adoption. ; 

That the States have very important ' 
constitutional authority left witb them, 
and that it regulates and eontroles nine- 
tei ths of all the ordinary concerns of life 
ivithin each State, that we perceive its ac- 
tion in theavocationsoflifeten times where 
wedothat of the United States once, is true, 
and I have never intimated the contrary ; 
but where does it transcend the boundaiies 
of the State in any instance or in respect to 
any species of property f T say nowhere 
in no conceivable ease. A Kentuckian 
cannot recover his fugitive slave in Ohio by ■ 
Kentucky law, but must re.sort to United 
Slates law for the purpose. The Consti- \ 
tution gives Congress -power to regu- ; 
late commerce between the States, and , 
the commerce in slaves is included in j 
that clause as well as the one respecting ' 
foreign commerce. This authority has ' 
been exercised. The Srh, 9th and 10th ' 
sections of the act of March 2, 1807, put ' 
the coastwise commerce in slaves under \ 
very severe restrictions, interdicting it ab- 
.-joliitely in vessels under forty tons bur- 
then. That act is still in force. It has 
been proposed to strike out that clause 
of the Constitution lately. I do not' 
think the amendment could be effected, i 
The change would be much greater than ■ 
(irst impressions would indicate. The 
Constitution of the United States i.s, to an 
immense estent, guarantor of personal 
and property rights. Every clause of 
sec. 10, art 1, restrains the States fi-om 
acts by which the rights of persons and 
property might be infringed, and such ^ 
acts have, m a multitude of cases, been an- ! 
nulled by the Supreme Court of the j 
United States. The ratification was to be ' 
by the conventions of nine States. \ 

Nothing more surprises me than your ' 
idea that " if we strike down the people 
(Query. Citizens ?) of a State we have no | 
people" (Query. Citizens?) of the United 
States. Was you naturalized a citizen of ^ 
Ohio or a citizen of the United States ? ■ 
Is your citizenship a thing different from | 
mine, I being native-born ? According ' 



to your doctrine we have no man eligible 
for President as he mnst be a natural- Dom 
citizen of the United States, not of any 
State. 

I do uot see that there being or not be- 
ing slave States in the Union can effect 
the normal condition ot territories where 
the laws of no State, slave or free, have 
any potency. Their normal condition 
must be slave or free, it cannot be both in 
the absence of human law, and to deter- 
mine wliich we must appeal to the law of 
nature. That polygamy is inconsistent 
with the peace of families, with good mor- 
als, with public prosperity, I do not 
doubt, and 1 think you and I would agree 
in predicating the same things of slavery. 
Both are twin relics of barbarism. But 
how the one, my position, is any more in- 
consistent than the other with a republi- 
can form of government, I am unable to 
see. Can you enlighten rao on that mat- 
ter / I assure you I do not repine at be- 
ing unable to enjoy either, but most think 
both equally require a positive law to tol- 
erate them. I answer your last query by 
denying that the United States Govern- 
ment has any analogy to a partnership. It 
is a government in which the decision of 
the majority, expressed in the prescribed 
mode, binds the rights of all. 

My active season is commencing, and 1 
may be compelled to close our interesting 
correspondence. Indeed I do not see that 
anything new can be elicited on either 
side, unless lawyer-like wo array our an- 
thorlties in martial ranks on either side. 
Truly yours, 

* " R. Marsh. 

flON. C. RUKMEiaN. 



- CiNCiNXATi, March 29, 186J. 
llox. lloswELL Marsh, Steubenville. 

Dear Sir : Yours of the 26th opens with 
a question, which again and again exposes 
the radical difference there is between oiu' 
views upon the United States Constitution. 
You ask, where I find that the United 
States Government has agreed to have no 
normal condition of its own, but to "follow 
that recognized as de facto and de jure by 
State sovereignty ?" ' I answer, it did so 
when the clause was inserted into the Con- 
stitution that " the powers not delegated 
to the United States by the Constitution, 
nor prohibited by it to tho States, are re- 
served respectively to the States or to the 
people." This is the tinal agreement be- 
tween the States and the United States 
Government; it means that that Govern- 
ment shall never attempt to get powers by 
a priori reasoning, by appeals to nfttnral 



^6 



law, or by analogy to civil governments. 
It means, further, that in all c^ses where 
the Constitntion itself is silent, the law 
and authority in any case shall not be 
sought by overleaping the States and their 
people and by roaming in the wide fields 
of law generally, but by an immediate 
reference to the States and their jjeople and 
their laws. Neither the laws of nature nor 
the civil law, nor any other law, can be 
law for the United States Government, ex- 
cept that willed for it by the States and 
the people thereof in the Constitution; 
and furthermore, outside of that instrument 
there is no law anywhere or for any per- 
son or any thing, except State law. Two 
sources, then, and no more have we in our 
several governments; first, the Constitu- 
tion as the law of our interaational Union, 
and second, the State laws for all the com- 
mon affairs of Ufe. Hence, I say, the 
United States Government has agreed, in 
all cases where no power is delegated to it, 
(and it has none as to rights of person, to 
which I applied my argument) to have no 
normal condition of its own, but to follow 
that recognized as de facto and de jure by 
State sovereignty. Such is, as far as I 
know and can find out on inquiry, the rale 
in our United States Courts, and they, in 
comity to the States, have even adopted 
in each of their district courts, as their 
mode of procedure, that in force in the 
State whtre they sit. 

This brings, as I have already duid, to 
the surface the very lino which separates 
us. You search out the law for and in our 
territories outside of the Constitution and 
the State laws by going to the law of na- 
ture and to (I priori reasoning. That nat- 
ural law of freedom of person has, how- 
ever, as much and as little force in the 
States as in the territories, it exists for all 
as a sort of fundamental theory ; but, let 
me ask, why is it not enforced for all? 
Simply because other law has taken effect, 
and upon whomsoever that other lav,-, pre- 
scribed by supreme power, attaches with- 
in the same political unity, he cannot get 
clear of it, except by the act of another 
supreme power removing it. Now, then, 
let us see who is the supremo <i)ower in the 
question at issue between us. In a gov- 
ernment, uniting by their voluntary ac- 
tion sovei'eign States into a common in- 
ternational Union, there cannot, in the 
very nature of the existenco of the latter, 
be any other fountain of authority and 
law, except the grant of those who created 
it, as expressed in the Constitution the 
written evidence of the compact, and any 
and all attempts to reach authority and 



law for such, union by philosophic or other 
general legal reasoning, or by analogy with 
other governments, are efforts to interpo- 
late new powers against the will of the 
sovereign members of the Union. They 
are, in fact, an illegal, fraudulent mode of 
changing the union compact itstlt by step- 
ping beyond and outside the parties to it. 
They render nugatory every rt^servation of 
powers and every safeguard in the Consti- 
tution. 

To make thl-i mutter plain beyond cavil, 
let us briefly go over the process by which 
wo obtained onr present federal system. 
There was a time when there was no su- 
preme or universal law of any lind over 
our entire country. Certain free and in- 
dependent States entered into a confed- 
eracy, with imperfect rules, and hence 
they convened in a delegated general con- 
vention, and afterwards in separate State 
conventions, and perfected a new, more 
perfect, supreme and universal law. They 
created (pro tantoj a .sovereign legal per- 
son, the Government of the United States, 
and endowed it with certain sovereign at- 
tributes, reserving, however, the residue ^ 
to themselves and.t]ieir people. Xow, I 
would like to know, where is there a loop- 
hole for bringing in an iota of supremo oi 
universal law binding all the States and 
all the people outside of the Constition for 
tho government aforesaid? You may 
amend it, but you have to have tho con- 
sent of three-fourths of the States, and 
the amendment must of course have refer- 
once to the recognized objects of the union. 
Apply this reasoning to the question be- 
fore us, it follows that, as the United States 
have no supreme universal law given them 
as to the rights of persons in the Constitu- 
tion, on the contrary as they are forbid- 
den in tho bill of lights to interfere wiih 
them, there is no supremo or universal 
law on that subject in force, and that in its 
j absence State I&ky rules as cases arise. 
This ousts your law of nature ; it can't 
take effect, because a power, supreme on 
the point, a State has established another 
I law which, by the reservation above spoken 
of, is tho authority until abrogated by an- 
' other supreme law. This disposes also 
; finally of that igmis fatuus of the Chicago 
I Plattorm — the " normal condition." 

You say : " The Constitution recognizes 

slavery in tho States which sanction it." 

j A complete mistatement of the Constitu- 

, tiou, unless so claimed as a result of the 

reservation of all things to the States, not 

specially delegated to the United States. 

; The word " recognize " is a bad word in 

this connection. The States recognize the 



47 



Geuorul GoverumouL, noL it the States uud 
their inatitntions. The father recognizes 
the Bon, and not the son the father. Prop- 
erty is property, because it 'm such by 
State, common or statute law, that lavr is 
its claim to recognition, it needs no other. 

The fugitive slave clause, to whicli you 
again refer, is an international agreement 
betwi^en sovereign States binding them- 
selves not to discharge, in ])ursuanco of 
any law of their own, but to tleliver fugi- 
tive slaves. It is strict law, (jus strictum) 
as all international agreements are, and I 
think it very questionable whether the 
Onited States have power to enforce the 
agreement. It may have power through 
proper suits in the United States Supreme 
Court. No idea did or could prevail that 
the United States could pass a law or 
i-egulation discharging a slave, hence no 
provision against such a law or regulation 
was made. So, too, in the terrirories, no 
one ever thought that therein the United 
States or the territories themselves could 
abrogate property rights existing by State 
law, as all knew that sovereign State au- 
thority could alone change the law \n ac- 
tual existence. 

One word as toyour " elementary " prin- 
ciples, another word, I suppose, for " nor- 
mal condition." Agreed that it takes a 
law (though not necessarily a statute law) 
to hold a slave. Very well ! Is there not 
such a law iipon the slave brought into a 
territory? Where is your law to make 
him free ? You answer, the slave law died 
at the State line- Not true, answers all 
history ! The Phoenician, the Greek, 
the Carthageuiau, the Roman, the Dane, 
the Norman, the Hollander, and par- 
ticularly the Englishman, carried with 
them to their colonies or outside territorial 
possessions their home-laws; especially so 
in all cases v/here no law in the colony in- 
ter^'ened, as there was not and cannot be 
in uninhabited tonitories- All retained 
the right to their servants. The vei'y idea 
that in a territory owned by the parent 
States, the law of these States is to be de- 
clared a nullity by a leap into law-meta- 
physics is preposterous. 

Take the case as it actually stands. Here 
is an emigrant from Kentucky ; he has 
crossed into an United States territory' ; he 
has a wife, children, slaves, horses, wag 
one, etc. The wife now eays, we are no 
longer man-ied ; the sou says, I am my own 
master; the daughter claims to marry 
whom and when she pleases, and that a 
part of the family property is hers and her,i 
brothers as well as her mothers, and the j 
slave claims to be free ! Where does the ' 



I law couio from that holds the wife, the bol, 
the daughter, the chattel property and the 
slave ? There is but one answer possible, 
they brought it with them, and until some 
competent authority intervenes, it contin- 
ues in the eye of all calm American, Eng- 
i lish or German lawyers. Of course the 
nakr familias might, Kansas fashion, be 
ovi<rwhelnied Jbr violence, but of that we 
i do not speak. 

; "This brings us to the point where you 
iutrbducc the United States Judge, and the 
writ of habeas corpus, an introduction for 
which please accept my thanks, as we shall 
! now got to law in earnest. Dropping the 
: point, whether the United States can es- 
{ tablish courts in territories, I answer your 
I query as to a return to a writ of habeas 
corpus, as I answered it in my speech de- 
livered Septoraber }i, 1860, at Wooster, 
;Ohio:' 

"To test this wholoquestioti, suppose we 
I go as brieily .-ts possible through the forms of 
I a judicial trial. Let the Hceuo be laid in Kan- 
I eaa, and let us suppose the owner of a slave, 
! and the slave before the court on the writ ot 
i luihcaa corpus. 

"The owner, though not strictly required to 

: do so, fortifies his right of ownership by a 

certificato under weal trom a State Court, that 

j ho is tho lawful owner of the man in court, 

! and there he reats his case, claiming that he 

I is possessor in fact, and that full faith and 

i cr«dit must be given within tho United States 

I to tho records of the several States. 

I " Tho attorney for the liberating party now 

asks for tho discharge of the slaves as a fcee 

man : 

"1. Because, there being no law establiBhT 
ing slavery, freedom is supposed to be thr' 
rule. ' ;■ 

" 2. That. the law of Kentucky is not in 
force beyoM itn own. jurisdiction. 

" 3. That freedoui is the normal conditiou 
of tho United States, and tho owner must' 
provo his property by a law of tho territory. 

" Will not the Judgo reply as follows 1 

' "I hold in my hands the record of a sov- 
ereign State of tho Union ; it proves the re- 
lation of these two men to be that of master 
and slave ; I cannot go behind this record, 
unices you prove a valid law passed by sov 
ereigu authority, for this territory prohibit- 
ing tho existence of such a relation here. 1 
oaanot presume a uecro to be free by natural 
law, when the record proves him to be a slave. 
Freedom is not tho normal condition of color- 
ed men in this republic, neither in tho States, 
nor in territories. In fact there are few, if 
auy, noiTual conditions in tho United States, 
as to domestic matters. The marriage of one 
man to one wife may bo such, on account of 
that being tho universal custom. A court 
cannot make law, and where no statute law 
forbids it, we are bound to recognize the con- 
tinuance of a legal right, which exiRted in a 



48 



state, aud tro cannot accede to the proposi- 
tion, that in onr territoriea citizens are strip- 
ped of previously enjoyed rights by mere pre- 
sumptions. Laws regulating the rights of 
persons do not spring from the soil; ?7 is 
neither free nor slave; colored men are both 
in this country. These persons came before 
US with their relations legally fixed, and the 
oourt knows of no law to change them. This 
negro is not about to be deprived of liberty, 
he never had it, and we cannot give it, — the 
master is proposed to be deprived of his pro- 
perty, and as there is no valid law authoriz- 
ing this to be doue, wo cannot do it. No 
' due course of law ' is established by any sov- 
ereign authority acting within the territory, 
nor has Congress made such a provision. In 
fact, the tenure of property cannot bo nhnng- 
fld, nor created at will." ' 

It is due to you and mj^self to add liere, 
that I do not claim that all the laws of a 
State go with the emigrant to a new terri- 
tory. The real estate laws, the tax laws, 
and such as these do not, the reason being 
in their inapplicability. You also name 
apprentices, and I have given the reason 
in their case. I suppose, however, that an 
United States Jadge would, in the case of 
a minor, who was taken by his master to a 
territory, enforce at least temporarily an 
apprentice contract, if beneficial to the 
ward. New York authorities over houses 
of correction for juvenile offenders appren- 
tice children in Ohio and even to persons 
in territories. So their reports say. 

Your reference to United States statutes, 
passed and approved by various Presidents 
as to the transportation of slaves from 
slave States to territories, coupled with the 
statement that the " ayea and noes " were 
not once called upon their passage, proves 
nothing except that proverbial legislative 
carelessness of which our statutes are full. 
The very fact that these laws were not 
controverted proves that they received no 
careful consideration. Every one of our 
Presidents has signed bills which, on ma- 
ture reflection, he disapproved. It was at 
one time the policy of our Southwestern 
territories to prevent slaves being sold in- 
to them. They asked for a prohibitory 
law and obtained it ; mem. con,, on the other 
hand, the very first law upon the United 
States statute books is one signed by Wash 
ington, re-securing to Georgia owners their 
slaves that had escaped to Indian tribes, 
who insisted on man's natural rights and 
had refused to deliver them up. Giddings 
makes Washington a slaveocrat for tlus 
and similar acts, but who believes a word 
of the charge ? 

I can hardly believe that you have well 
considered all the bearings of your asser- 



tion, that the United States have the same 
rights of property and jurisdiction in a ter- 
ritory as in a national ship. An United 
States soldier or marine surely stands to 
the United States Government in a far dif- 
ferent relation to that of a citizen migrating 
into a territory. On this point I agree ful- 
ly with that part of the sjlabus of the 
Dred Scott decision, which was assented to 
by all the judges, to- wit: " T7/.e United 
States cannot acquire territory to govern it 
i at xvilV I never heard, however, that the 
i United States ever set free a negro slave 
! brought into a national ship or United 
j States fort by an officer, and I do not be- 
lieve that it can be legally done. I have 
seen slaves of officers on national ships 
even in the harbor of New York. 

I will not again enter the discussion as 
• to that fine spun theory, that the people ot 
; the several States merged themselves, 
i when they had ratified the Constitution, in 
j a people of the United States, and thus 
j abrogated themselves. The law of na- 
! tions holds otherwise; it says : " Though 
j States may unite themselves so as to rep- 
; resent, as to other Nations and States, to- 
1 gether, a single independent moral or legal 
, person (an international total power), jet 
they do this without prejudicing the indi- 
vidual sovereignty of each of these States." 
; The language of the Constitution, " we, 
I the people of the United States," is not a 
; mere name, it is a description of an actual 
i fact, which is, that States united. Our 
: General Government was made by the 
States for the States and their people, and 
whenever it ceases to recognize its origin, 
or flies from its orbit, it becomes the duty 
and the right of the States to check it, as 
they did in 1798, and if it wont be check- 
ed to change or abolish it. The rights of 
the States and their people are the para- 
mount object of that Government — they 
should never be unwan'antably invaded. 
I do not say that this has been done 
with that odious obstinacy with which the 
King of Great Britain oppressed our Col- 
onies ; but there is a prodigious leaning of 
' our now poudersome General Government 
I towards an undue exercise of power, which, 
though it were ever as it was previous to 
the 4th of ^larch, administered by Demo- 
crats, warns us what it may become any 
moment if the Ship of State should drag 
from her moorings, and be entirely con- 
trolled by its office-holding crew. You 
think our present troubles due to States 
Eights doctrines, I lay them to their viola- 
tton. You say, if State authority had been 
the real origin of our Constitution we 
should have been torn by civil war torty 



49 



years since. I believe that we have been 
kept from civil war because we had States 
free minded like Kentucky and Virginia 
were in 1798, as a balance wheel in our Gov- 
ernment. All governments have their his- 
torical natural symmetry, without which 
they are uncontrolable. In England it is the 
Commons, the Lords and the King ; with 
us it is the People, the States and the Cen- 
tral Government. May you and I never 
be compelled to see our affairs governed 
without either of these three powers as 
checks upon each other. 

Your argument, that it makes any dif- 
ference whether State Legislatures and 
State Conventions ratified the present Con- 
stitution is badly taken. States and their 
people were represented in both. T never 
seperate in my mind the people of a State 
from their State. In the Constitution I 
have at heart the '• sixth Article " is never 
left out. I am for the proper exercise of 
all authority actually granted, but there I 
stop. I have said so repeatedly aud now 
repeat it. , 

Your special plea about the transfer of 
allegiance by Connecticut to a Senator of 
the United States, is a little obtuse to me. 
Do you mean to ask me whether an United 
States Senator should remain in the United 
States Senate after his State has by a Con- 
vention, called and elected by the people, 
decided to leave the Union ? I answer, I. 
if I were a Senator, would not remain if I 
were satisfied that the Convention was 
fairly called and elected. I do not, how- 
ever, agree to the idea Mason, as you say, 
advances, that no allegiance is due to the 
Uuited States by a Senator. To be sure 
the word allefjianvc has a royal ring in it, 
which makes it a bad word to use in Uni- 
ted States matters. An Englishman owes 
allegiance to his King. We owe the Union 
(using the words of Washington in his 
Farewell Address, who never used the 
word allegiance,) a cordial, habitual and 
immovable attachment. An United States 
Senator owes truth and support to the Uni- 
ted States, but he owes it also to his State, 
and to impress that idea fully the Constitu- 
tion requires him to be a resident of the 
State he represents. 

Why will you persist in stripping our 
system of this double duty, and why do 
you desire to concentrate all allegiance in- 
to our General Government? I see no 
trouble in a Senator or any citizen being 
true to his State and the Union, as long as 
each keeps its place. Trouble comes when 
the two come in conflict, when each wants 
a n-lioU allegiance while it is entitled only 
xc. ;i divided one. and I pity from my soul 



the poor citizen who, true to both, is de- 
nounced by those false to one or the other, 
because he can't forget his duty to hoik — 
the Union and the States. 

Your associating me with Mason aud 
Wigfall, Ijoth strangers to me in more sen- 
ses than one, does not alarm me, though 
it may be dangerous to be so conjoined. — 
I am getting used to have myself associa- 
ted with various political scapegoats of 
current party prejudice. A little while 
ago they put me in line with Chase and 
Seward and made me an abolitionist. — 
Well ! well ! I have got out of that com- 
pany, and in time it will be seen that I do 
not afl&liate with the others either. As 
politics now move, to be consistent as a 
partisan one would have to saactio^i all 
the inconsistencies of his party. This I 
will not do, but prefer to (qypear inconsis- 
tent while I am really consistent. The 
cheapest consistency is party consistency, 
it is that of a soldier Avho sticks to the 
bread wagon. I have none of that consis- 
tency. So you are welcome to conjoin me 
with anybody, and ifassociations of names 
must be had, join me with the unpopular 
men, for I have a kind of feeling for them, 
if only to show my independence ! ,., ,;.;;, 
I But let us return to the argument. Tpu 
: and I are citizens of the United States, 
; and we are also citizens of Ohio. I, at 
! least, was sworn by General Harrison as 
] Clerk of the Common Pleas of Hamilton 
I county, to support the Constitution of 
! the United States and of the State of Ohio, 
j and this is the universal practice in all 
j naturalizations. I wrote for our present 
State Constitution, the clause requiring 
1 the double oath for all officers to support 
I both the United States and the State Con- 
stitution. You are to-day under that 
1 double duty, whether you like it or not, 
! and so is every United States citizen. — 
I Why should we object to this ? Why 
i should the General Government absorb all 
i our faith 1 Why should it crowd out Uie 
I States f Why not admit the whole truth. 
I so wholesome to all, that in all things 
I granted to the General Government the 
j States are subordinate, but in all things 
I not granted the United States Govern - 
! ment is subordinate ? And why deny the 
further truth that in some things both 
classes of government are co-ordinate 
with each other ? This double fealty is 
inseparable from our structure of govern- 
ment, and I never found any dilliculty in 
it. Your mixing citizenship with it jos- 
tles the point a little, but habituated as I 
have been from early life to local. State 
and national citizenship in fatherland, I 



50 



do not become confused, and true as the 
needle to the pole, I return to the fact that 
there was and is a people in each State, 
and as such they form the people of the 
United States. Take the people of the 
several States away and where is the peo- 
ple of the United States ? You are no 
doubt familiar with the Irishman (I won- 
der why that story was not put on my 
countrymen) who, in sawing off a limb of 
an apple tree while sitting on it, felt some- 
thing " drop " and found it was himself. 
It is precisely a case in point for those 
who labor to get the people of the sever- 
al States out of the United States, for 
then the whole thing will drop from un- 
der them and they with it. 

I did not say, as you seem to suppose, 
that polygamy could be declared unlaw- 
ful by an United States Court or Congress, 
hecatise it is inconsistent with the peace 
of families, good morals and public pros- 
perity, because it is one of the " twin rel- 
ics of barbarism," all matters with which 
our General Government has nothing to 
do. I did assert that our federal authori- 
ties might, under the necessities of the 
case, with perfect propriety, announce as 
a public notice to all concerned, that plu- 
rality of wives violates the universal cus- 
tom of all the the people of all the States 
of this Union, and for that reason it is an 
infraction of the common law and usage 
of the land. That would be as true of 
polygamy as it is false about slavery. If 
the lawftil mairiage of one man to one 
woman were not our universal law and 
custom, the United States Court would 
not so decide, however barbarous polyga- 
my might be in its opinion, because, when 
the Constitution is silent, and where there 
Is no universal usage or law in aU the 
States, an United States Court does not 
go abroad in the vast field of morals to 
find a common law for the United States, 
for its province to find law is at home in 
our land and among our people, their law 
is its law and so it must declare it. What 
I hare here said of a court is true of the 
President and ot Congress, and also of the 
people, or a majority of voters. The lat- 
ter have no larger powers of component 
parts of the Federal Government than the 
Constitution gives that Government, and 
neither courts, nor Congress, nor the Pres- 
ident, nor the people can, when acting 
^yithin the Federal Government, do as 
they please. 

Our discussion may now be considered 
as closed in accordance with your wishes. 
I am glad we have had it, for I frankly 
admit it has made many i^oints clearer to 



me. Please accept my thanks for the 
pains you took to convince your ju 
nior of what you would call the errors 
of his ways, and do not get angry if I in- 
form you that he has most of them yet. 
It is too plain for concealment that the 
good old Democratic States rights axioms 
are deeply engraven on my mind, and 
that yours is steeled against their ap- 
proach. The line of the Kentucky and 
Virginia Resolutions of 1798 divided us at 
the outset, and they separate us still. 

Allow me now to recapitulate the points 
I have sought to establish : 

1 . The Government of the United States 
is not sovereign per se : it has no inherent 
original powers. 

2. The Government of the United 
States is sovereign towards foreign na- 
tions, being so created by the States and 
their people, but the States are still indi- 
vidually sovereign, and in them rest all 
residuary sovereign jjowers. This residu- 
ary sovereignty is a necessary ingredient 
of our Federal Government, as without it 
wo have* no efficient means to watch, 
check and to contol it. 

3. The Constitution where it speaks i* 
the supreme law of the land, and ao are ail 
constitutional enactments. In tlieir ab- 
sence, a legal status fised for persons in a> 
State or States remains until abrogated by 
a law enacted by sovereign power. 

4. A universal law or usage in all the 
States in the Union alone justifies the 
General Government to so proclaim it, for 
instance, the marriage of one man to one 
woman is such a law and usage. 

5. A right of property, lawful in any 
State in this Union, remains such in the- 
territories, and nothing short of sovereign 
State authority can abrogate it. 

(5. The United States Government has 
no powers whatever to establish or to abol- 
ish slavery. 

7. All personal relations, slavery includ- 
ed, are sectional under our federal system, 
and they have a right to be so. They do 
not require the recognition of the Federal 
Government to make them lawful. The 
right to determine upon them existed be- 
before the Constitution and outlives it ; it 
belongs to the States and the people thereof. 

8. A strong federal government towards 
foreign nations, and a weak one towards 
the people and the States, are the best con- 
ditions of the welfare and perpetuity of 
the Union. The British Government is 
the best in Europe, because it has both 
these attributes better than any other. Sir 
Robert Peel saved the English people 
from a revolution by >neldinf» at the right 



51 



time ; Louis Philippe lost liis throne by re- 
sisting until it was *' too late." 

9. The United States Government havS 
no powers, except those clearly granted in 
the Constitution. 

10. " The people of the several States " 
are the grantors of the powers of our fed- 
eral system, without them there is no peo- 
ple of the united States. 

11. When the present United States (!on- 
stitution was inade there was no tahula 
■rasa, rights of property existed in lands 
Hud goods and in slaves, which remained 
as unaffected by the United States Con.^ti- 
tution as they did by the Declaration of 
Independence. 

Ixi. That joint purchasers and owners of 
land cannot object to the settlement there- 
on of a CO -purchaser and owner with his 
family or property for causes known when 
the .joint purchase was made, and not then 
explicity stated in the purchase contract. 



And now, having closed our discussion. 
what do you say to publishing our letters t 
I do neither desire it nor would I object to 
it, and if you are willing I am, but wish to 
revise my letters so far as inaccuracies of 
language have crept in. I wrote most of 
them amidst interruptions of business, and 
they are the result of deep convictions 
rather then of studied efibrt. The copies 
I took of my letters are imperfect, so in 
case their publication is determined upon, 
I would have to ask you to return me 
the letters themselves for the above pur- 
pose. 

I leave the determination to yon, and 
presenting my most respectful compli- 
ments to you and also to your estimable 
lady, whose time has been so much em- 
ployed in this matter, I remain, in spite of 
political differences, yours, with the high- 
est esteem and regard, 

ClIAS. TIE£MET>IN. 



54 " 



iV <>. 




^ ,..'•4 -^O -Js!^ -^ilf*,^^ 










\^ ., -^ •" > <?>-•'"' ^V^ 







/%. '•^^'- ^'^^ •.^- /\ °-.^^-- **'\ -.1 



o_ *'" 











■.tii;^t.V ..o*..i^.*°o /.'j-j^t-v .p^.c^'^^^o 




















r ... 









.0^ ^2> 




V^\!Jel 









'^O^ 



^V 



















*Oo 






































8,^' ^^> 






b5°.<» 





1^ 







iP-^K 










./x 








A 






WtRT 
BOOKBINDING 




'>o^ 




s*^, 



*/^^ 





